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[2024] ZAECMHC 40
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Mnqandi v Walter Sisulu University and Others (440/2024) [2024] ZAECMHC 40 (28 May 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
CASE
NO: 440/2024
In the matter
between:
SIYASANGA
MNQANDI
Applicant
and
WALTER
SISULU UNIVERSITY
1
st
Respondent
WALTER SISULU
UNIVERSITY REGISTRAR,
DR
L.
NTONZIMA
2
nd
Respondent
MINISTER
OF HIGHER EDUCATION, SCIENCE
AND
TECHNOLOGY
3
rd
Respondent
JUDGMENT
RUSI J
[1]
Admission policies adopted by institutions of higher education are a
student’s gateway to receiving
instruction in the higher
branches of learning. When misapplied or misunderstood by those on
whom they are binding, they are capable
of thwarting rather than
enabling the student’s right to education.
[2]
Recent years have seen the evolution of admission and registration
policies of many institutions of
learning, in particular tertiary
institutions including the first respondent (“the University”)
as these institutions
make the most of the exponential advances in
information and communication technology. Like most if not all of its
counterparts,
the University has also done away with the traditional
face-to-face application, admission and registration system, and the
online
system is its new way of making tertiary education accessible.
[3]
The University’s annual prospectus contains its general rules
and regulations which deal,
inter
alia
,
with requirements for admission to various courses of study. These
rules and regulations have legal force and effect and are binding
to
it and its students. The University’s admission policies are
established in terms of the Institutional Statute
[1]
and the Higher Education Act.
[2]
[4]
The management and administration of the University as well as the
implementation of its regulatory
instruments, namely, – the
Higher Education Act, the University’s Institutional Statute,
its rules and policies, as
well as relevant higher education policies
vest with the second respondent.
[5]
Following her admission by the University into the Bachelor of
Education in Foundation Phase Teaching
(the B.Ed Degree), the
applicant in the instant case attempted to register for the same
qualification. Her attempt was unsuccessful
as the University’s
online registration portal issued her with notification that the
qualification was already fully subscribed.
[6]
Aggrieved by this state of affairs, she approached this Court on
urgent basis on 01 February 2024 for
an order declaring the
University to be in breach of contract and her right to further
education which section 29(1)
(b)
of the Constitution
[3]
guarantees. As relief for the alleged breach of contract she sought
specific performance, and on 07 February 2024 she obtained
an interim
order with an adjunct of a
rule
nisi
returnable on 20 February 2024, in terms of which the first and
second respondents were ordered,
inter
alia
,
to register and enroll her for the B.Ed Degree at the Mthatha Walter
Sisulu University, pending the final determination of the
application.
[7]
The application became opposed by the first and second respondents,
hence it served before me for final
determination on 05 March 2024.
The third respondent abides this Court’s decision. At the time
of this application lectures
at the University had commenced and the
applicant was unable to attend them.
[8]
In justifying the urgency with which she brought this application,
the applicant contends that when
the University unlawfully barred her
from registering for the B.Ed qualification, she acted with the
necessary swiftness in approaching
this Court and she will not be
afforded substantial redress at a hearing of the matter in due
course. It is this issue of urgency
that I must immediately dispose
of.
Urgency
[9]
A determination of urgency in application proceedings entails the
question whether the applicant will
be afforded substantial redress
at the hearing of the matter in due course.
[4]
Uniform
Rule 6(12) provides:
“
(a)
In urgent applications the court or a
judge may dispense with the forms and service provided for in these
Rules and may dispose
of such matter at such time and place and in
such manner and in accordance with such procedure (which shall as far
as practicable
be in terms of these Rules) as to it seems meet.
(b)
In every affidavit or petition filed in support of
any application under paragraph
(a)
of
this subrule, the applicant shall set forth explicitly the
circumstances which he avers render the matter urgent and the reasons
why he claims that he could not be afforded substantial redress at a
hearing in due course.”
[10] The
facts of each case determine whether the applicant will be afforded
substantial redress at the hearing in due
course. It has not been
disputed that at the time of this application the University had
commenced with the lecturing of its registered
students. Since the
circumstances giving rise to the present application implicate the
applicant’s constitutional right,
it behoves this Court to hear
the application on urgent basis as the applicant cannot be expected
to endure a continued violation
of the right that she seeks to
vindicate.
[11] In any
event, this Court is clothed with the discretion to resolve a matter
speedily where the circumstances of
the case such as the present so
demand since form cannot be allowed to trump substance. I am
therefore satisfied that the
matter is sufficiently urgent. I deal,
in turn, with the merits of the application.
[12] For
convenience I shall refer to the first and second respondents
collectively as the University without derogating
from the separate
legal existence of the University as an institution. The second
respondent shall conveniently be referred to
as the Registrar
whenever the context so necessitates.
Factual background
[13] While
still in Grade 12 in the year 2023, the applicant applied to the
University through its online application
system for admission to
study towards the B.Ed Degree. Having met the requirements for her
admission, she was admitted into the
University to study for this
qualification. She made payment of the required initial minimum
registration fee of R4 800. 00 on
24 January 2024, at 09h55.
[14] When she
began registration, the online registration portal advised her that
the qualification was fully subscribed,
as a result, she could not
register. Her written demand to the University that it allows her to
register for the B.Ed qualification
to which she was admitted did not
yield favourable results and this impelled the instant application.
These facts are common cause
between the parties.
The issues for
determination
[15] The
issue for this Court’s determination is whether a contract was
concluded between the University and the
applicant when she accepted
the University’s offer register for the B.Ed qualification or
upon her payment of the minimum
registration fee; and whether the
University breached the said contract when its online registration
portal refused her registration
for the B.Ed qualification. I am also
called upon to determine whether the University violated the
applicant’s right to further
education when it refused to
register her for the B.Ed Degree.
The case of the
applicant
[16] The
applicant alleges that she was officially admitted by the University
and accepted its firm offer on 24 January
2024. She accepted
the offer by calling the University on its given telephone number and
asked to speak with the Registrar.
When her call was transferred to
the office of the Registrar, she indicated to the person she spoke
with from that office that
she accepts the offer to register for the
B.Ed qualification.
[17] The
material term of the offer she received from the University was
payment of the minimum registration fee of
R4 800.00. Subsequent to
this call she proceeded to pay the minimum registration fee after
which ‘she was cleared to register’.
When she attempted
to register, she was unsuccessful, and the student portal gave her
notification that her course of study was
fully subscribed.
[18] The
applicant annexes to her founding papers as “Annexure B”
an undated copy of a screenshot of the
University’s online
admission status check. For ease of comprehension, I reproduce the
relevant parts of Annexure B below:
‘
Applicant,
Please use your WSU
Reference number or ID Number to check your admission status.’
______________________________________________________________________
Welcome: 240091639
Siyanga Mnqandi
______________________________________________________________________
Choice 3
Qualification: B.Ed in
Foundation Phase Teaching
Status:
ADMITTED
Offering Type: MTA –
Nelson Mandela Drive-F/T
[19] She also
annexes a copy of proof of immediate payment of the minimum
registration fee issued by Capitec Bank at
09h55 on 24 January 2024
which the University recorded as a credit against her account.
“Annexure E”, being an undated
computer screen copy which
depicts that the applicant went online and saw the University’s
notification that the course had
become fully subscribed, is also
annexed to her founding papers.
[20]
According to the applicant, a contract came into existence between
her and the University when she accepted its
firm offer to register
for the B.Ed qualification and she perfected it when she paid the
required minimum registration fee. Resulting
from this contract, she
says, the University had an obligation to allow her to register for
the qualification it admitted her to
study towards.
[21] The
applicant further alleges that the University breached the contract
that came into existence between it and
her when it barred her from
registering for the B.Ed qualification notwithstanding her admission
into this qualification and payment
of the required registration fee.
It is the applicant’s contention in this regard that the
University’s conduct in
giving her space to another student
despite her admission, is constitutionally reprehensible.
[22] It is
her assertion further that the University violated her right to
education which section 29(1)
(b)
of the Constitution
guarantees and also failed to fulfil its obligation to make available
and accessible to her further education
through reasonable measures.
[23] The
applicant goes on to state, therefore, that she has a clear right to
the relief she seeks and that she will
suffer irreparable harm if she
is not granted the relief sought. In this regard she states that she
will lose a year of tuition
as a result of her unlawful exclusion
from registration by the University, and that the prejudice she
continues suffer results
from the fact that lectures had begun and
she unable to attend them. She further states that since she
unsuccessfully demanded
registration by the University by way of a
letter written to the University by her legal representatives, no
other alternative
remedy is available to her for vindicating her
rights.
The respondents’
case
[24] That a
contractual relationship was established between it and the
applicant, and the alleged breach of contract,
are denied by the
University. According to the University, the applicant’s
asserted right to education does not extend to
a right to enrolment
or registration at the institution.
[25] The
University states that the B.Ed Degree received 16 956 applications
for the 2024 academic year, but only 501
met the admission
requirements. The quota for this qualification for the 2024 academic
year is limited to 110 vacancies as determined
by its Council with
the approval of Senate. All the applicants for admission, including
the applicant in the instant case, so the
University says, were
advised via SMS, email and correspondence that registration was
subject to the availability of space. This
fact was neither denied
nor admitted by the applicant in reply, she noted it.
[26] The fact
of the applicant’s admission into the B.Ed qualification and
her payment of the registration fee
is admitted by the University.
That being the case, according to the University, the applicant’s
admission into the qualification
did not guarantee her a right to
register for the qualification nor does it vest a legal right to be
so registered as it is subject
to availability of space. On this
score, the University alleges that the applicant was refused
registration for the qualification
because it had become fully
subscribed.
[27] In the
University’s answering affidavit, its Registrar further states
that due to the excessive number of
the applications that the
University receives for its qualifications and programmes, it applies
its selection process subject to
its capacity to offer the
qualification and programmes concerned; and the students’
registration is subject to availability
of space.
[28] The
University contends that its admission and registration policies are
fair and transparent and are codified
in its prospectus. It further
states that its qualifications and programmes historically became
fully subscribed within thirty
minutes after registration becomes
open. According to the University, this also comes with a challenge
in that the number of applicants
who meet its minimum requirements
invariably exceeds its quota and this is the case in each academic
year. Resulting from this,
it became necessary for it to implement a
first come first served basis of online registration in order to
promptly complete the
registration process and prevent over
subscription on pain of lack of funding from the third respondent for
a given academic year.
[29] The
applicant’s assertion that she accepted the University’s
offer telephonically on 24 January 2024
is disputed by the University
which states that acceptance of the offer is not done telephonically
but ‘by way of,
inter alia
, registration via its online
registration portal’.
[30] The
University takes cognizance of the fact that it is the only
university that serves a vast area around the Eastern
Cape with
approximately 4million people who reside in the former Transkei
homeland and who do not understand distant learning and
often shy
away from it. It further states that it receives approximately 357
622 applications each year and it can only admit 31
000 of which 7
322 is the maximum intake for first year students. It is its
contention, however, that allowing a course of study
to be
oversubscribed would be prejudicial to its fiscus and by extension,
its students as resultant additional teaching capacity
would deplete
its limited financial resources.
[31] It is
its assertion further, that even though it refused the applicant
registration, and while also confirming
receipt of her letter of
demand, the applicant has an alternative remedy of applying for
admission at another institution of higher
learning.
The applicant’s
reply
[32] Dealing
with the University’s defence that registration for the
qualifications it offers is on a first come
first served basis, the
applicant states, in her replying affidavit, that provision is made
for a period of three days within which
to complete registration for
a given qualification, failing which the space reserved for a student
would be given to another qualifying
student. She further states on
this score that the University cannot allow a student three days to
complete registration and simultaneously
provide that registration
will be on a first come first served basis.
[33] It is
the applicant’s assertion further in reply, that the reason for
the call she made to the office of
the Registrar was to get
assistance with registration as she experienced problems when she
attempted to register online. She makes
no reference to a particular
dispensation or the University’s regulatory instrument in terms
of which a 3 day period of registration
is afforded to a student who
is admitted into the University for the academic year 2024.
[34] She
further alleges in her replying affidavit that the University is the
author of its over subscription challenge
by admitting more students
than it is able to register. She persists with the contention that
when a student receives communication
that he or she has been
admitted by the University, the said admission implies that the
University has reserved space for the student
concerned.
The parties’
submissions
[35] Mr
Vobi
,
counsel for the applicant, took the view that the admission status in
Annexure B contains no condition on which the applicant
was admitted.
It was his submission further, that the first come first served basis
of registration provided for in University’s
2024 prospectus
contains no condition that a student’s space would be given to
the next student in the even the affected
student is unable to
register on first come first served basis.
[36] It was
Mr
Vobi
’s submission further that the University had an
obligation to provide space to the applicant as an admitted student
who had
also paid the required minimum registration fee. This, said
Mr
Vobi
, was all the more so that there was no condition
attached to both the applicant’s admission status and the 2024
prospectus
which would justify the giving away of the applicant’s
space to another student.
[37] He
further submitted that when the University admitted the applicant, it
made an offer to her to register for the
B.Ed Degree and implied that
it would make available to her space to register to study towards the
said qualification. According
to Mr
Vobi
, this was an
irrevocable offer which the University had to keep open for the
applicant. By giving away her space, so the submission
continued, the
University acted in breach of contract when regard is also had to the
fact that the applicant acted promptly in
registering for the
qualification subsequent to her admission.
[38]
In buttressing his argument regarding the alleged breach of the
applicant’s right to further education as
provided for in
section 29(1)
(b)
of
the Constitution, Mr
Vobi
referred
me to various cases
[5]
,
including
Moko
[6]
,
in
which the Courts had occasion to consider the right to education in
section 29(1) of the Constitution
.
[39] The
Court, in
Moko
, considered the lawfulness of the conduct of
the Acting Principal of Malusi Senior Secondary School in refusing
the applicant therein
entry in the examination on the basis that he
did not attend extra lessons. The Court in that case held that
refusing the applicant
entry into the school without adequate
justification and preventing him from entering his examination was
undeniably a breach of
his right to basic education provided for in
section 29(1)
(a)
of the Constitution.
[40] There
ought to be little to no controversy regarding the fact that
Moko
dealt with the right to basic education, which is immediately
realizable, as opposed to further education which, in terms of
section
29(1)(b) is progressively realizable. Apart from this fact,
Moko
is distinguishable on the facts in that in the present
case, the applicant has not assailed the University’s
examination
policies to the extent that they would affect her as the
beneficiary of the right to further education.
[41]
A further submission is made in the applicant’s heads of
argument that the University was not entitled to
reject the applicant
for reasons of availability of space. I was referred in this regard
to
Mbana
v Walter Sisulu University
[7]
,
a decision from this Division by my brother JOLWANA J.
[42] The
matter of
Mbana
concerned a contractual claim founded on
breach of contract by the University after it prematurely excluded
the applicant from
registering for the Bachelor of Laws Degree
despite the fact that he had been given three days from admission to
complete his registration.
The applicant in that case had received an
admission letter from the University dated 07 February 2023 in which
it set out certain
terms of the offer, one of which was that the
applicant had to accept the offer within 3 days and that registration
was on first
come first served basis. In that application, the
applicant also sought to vindicate his right to further education by
alleging
that when the University prematurely excluded him from
registration, it violated his right to further education as enshrined
in
section 29(1)
(b)
of the Constitution.
[43] In
dealing with the applicant’s alleged late acceptance of the
University’s offer, the court in
Mbana
, said:
‘
[33]
It seems to me that the University was required to prove that the
applicant’s acceptance of the offer
was out of the time
prescribed in the admission letter. Vague epithets like availability
of space and first come first served would
indeed bind the applicant
but only after the expiry of the 3 (three) day period. This is so
because the University would not be
bound to accept a late acceptance
if the applicant had only attempted to register after 3 (three) days.
Put differently, the University
would be entitled to reject a late
acceptance and the constitutional right to further education
contained in section 29 (1) (b)
would, in those circumstances, not
avail the applicant. This means that the respondents are required to
prove that the acceptance
was late. They have failed to do so. That
failure to prove that the acceptance was late cannot co-exist with
prematurely giving
applicant’s space to another deserving
student.
[44] It
further found that it was improper of the University to adopt a first
come first served basis of registration
and simultaneously allow the
applicant therein 3 days to complete his registration. It further
remarked that the University’s
failure to disclose in the
admission letter that there were 75 spaces that the student would be
competing for was indicative of
lack of transparency in the
University’s admission and registration policy.
[45] In
granting the relief sought by the applicant in
Mbana
, the
court further found,
inter alia
, that the University failed to
adduce evidence to show the alleged late acceptance of the offer by
the applicant in relation to
the date of the admission letter that it
issued him with; and that it failed to set out the terms of the offer
with clarity and
certainty. I will revert to the applicant’s
reliance on
Mbana
at an opportune moment in this judgment.
[46] In the
first instance Mr
Hobbs
, counsel for the University, voiced
discontent at the poor quality of presentation of the application
papers by those representing
the applicant. This relates to what
appears to be a repetition of the facts belonging to the already
quoted case of
Mbana
, which, as will be demonstrated herein
below, are distinguishable from those of the instant application.
[47] I
interpose to state that this is, without a doubt, attributable to an
apparent “cut and paste” process
of developing and
drafting the papers filed of record in this application. Mr
Hobbs
submitted that this tends to bring about a contradiction relating to
the facts that the applicant places before this Court in the
instant
matter.
[48]
Concerning the merits of the application,
Mr
Hobbs
submitted that the document that the applicant relies on marked
Annexure B to her founding papers has deficiencies to the extent
that
it does not depict the time at which the applicant received the
ostensible offer from the university.
[49] It was
Mr
Hobbs
’s submission further, that the applicant has
not made out a case for the relief she seeks both in enforcing the
ostensible
contract and seeking to vindicate her right to further
education. In this regard, Mr
Hobbs
submitted that from the
facts of the application, no unlimited or open-ended offer existed
for the applicant to accept at her convenience.
He further submitted
that the offer to register for the B.Ed Degree as may have been made
to her by the University was on a first
come first served basis,
subject to availability of space.
[50]
According to Mr
Hobbs
, the applicant fell short in pleading
the agreement on which she relies, and which, on her version, was
partly oral and partly
written. This relates to the telephone the
telephone call she made to the University during which she allegedly
spoke to a staff
member whom she informed she was accepting the offer
made. On this score, he further argued that the applicant’s
failure
to state the name of the staff member means that she failed
to prove who represented the University in that instance and whether
that person had the capacity to represent the University.
[51]
Regarding the alleged violation of the applicant’s right to
further education by the University, Mr
Hobbs
submitted that
the applicant’s right to education does not extend to being
registered by the University. The applicant on
the other hand, so the
submission went, undeniably had every right to have her application
considered by the University in terms
of its admission and
registration policy, and this was done, hence she was admitted.
[52] Mr
Hobbs
further submitted that since the applicant has not challenged the
University’s admission and registration policy, or in the
absence of an allegation by her that the University failed to
consider her application in terms of its admission and registration
policy, its decision refusing to register her is unassailable. It was
his view instead that the applicant has herself to blame
for being
tardy in reporting for registration in circumstances where there was
a forewarning by the University that registration
of all students for
its courses of study, including the B.Ed Degree was on a first come
first served basis subject to availability
of space.
The law
[53]
A contract comes into being when an offer which the offeror made is
accepted by the offeree. Both the offer and
acceptance must fulfil
all the essentials of a contract.
[8]
For the acceptance to be valid, it must be unequivocal and in terms
of the offer and must be accepted while the offer exists.
[9]
The offer must be firm and communicated to the intended offeree. When
time is prescribed for the acceptance of the offer, it must
be
accepted within that period, failing which it lapses.
[10]
The result of a lapsed offer is that any attempt made by the offeree
to accept it will not bind the offeror and does not bring
about a
valid contract.
[54] Where no
time is prescribed for acceptance, an offer will validly be accepted
and bring about a contract if accepted
within reasonable time. What
constitutes reasonable time will depend on the nature of the contract
and the circumstances of each
case.
[55]
Once contractual obligations have been created by a valid acceptance
of the offer, a breach of such obligations
will entitle the aggrieved
party to seek redress by
inter
alia
,
claiming specific performance. The principles relating to a claim for
specific performance were enunciated by Innes J in
Farmer’s
Co-op Society (Reg) v Berry
[11]
when he said:
‘
Prima
facie
every party to a binding agreement who is ready to carry out his
obligation under it has a right to demand from the other party,
so
far as it is possible, a performance of his undertaking in terms of
the contract. As remarked by Kotze CJ in
Thompson
v Pullinger
(1894)1 OR at p301, ‘the right of a plaintiff to the specific
performance of a contract where the defendant is in a position
to do
so is beyond all doubt’. It is true that Courts will exercise a
discretion in determining whether or not decrees of
specific
performance will be made. They will not, of course be issued where it
is impossible for the defendant to comply with them.
And there are
many cases in which justice between the parties can be fully and
conveniently done by an award of damages. . . In
order to succeed in
its claim for specific performance, the applicant must allege and
prove: the terms of the contract; compliance
with any antecedent or
reciprocal obligations, or tender to perform them; and
non-performance by the defendant. . .’
[12]
[56]
The onus is on the party seeking specific performance to allege and
prove the terms of the contract and compliance
with any antecedent or
reciprocal obligation and that the non-performance by the defaulting
party amounted to a repudiation, alternatively
breach of the
contract. If the contract on which reliance is placed as well as
compliance with its terms are not proven, specific
performance ought
to fail.
[13]
[57]
An applicant for declaratory relief as in the present case,
must satisfy the court of no more than the fact
that he or she is a
person interested in an “existing, future or contingent right
or obligation.
[14]
In
determining whether or not a declaratory order should be made the
court must first be satisfied that the applicant is a person
interested in an ‘existing, future or contingent right or
obligation’, and if so satisfied, it must decide whether
the
case is a proper one for the exercise of the discretion conferred on
it.
[15]
[58]
As regards an alleged breach of a constitutional right, and as held
in
Ferreira
v Levin NO; Vryenhoek v Powell NO
,
[16]
a party alleging the violation of a constitutional right bears a
burden of proving the facts upon which they rely for their claim
of
infringement of the particular right in question. Once there is
prima
facie
proof of the violation, the party wishing to establish that the
violation is justifiable in terms of the limitations clause bears
the
burden of proving such justification. This does not suggest that the
respondent has the ordinary onus of proof, but that it
has an
evidentiary burden which places a duty on it to adduce evidence of
facts or policies which will enable the court to determine
whether
the violation of the right amounted to a justifiable limitation.
[17]
[59]
The rule in
Plascon
Evans
[18]
ought to apply in the instant matter since these are motion
proceedings – final relief will be granted if the facts alleged
by the applicant, which the respondent admits, together with the
facts alleged by the respondent justify the granting of such a
final
order. This Court will be entitled to accept the facts alleged
by the applicant in so far as they are admitted by the
respondent,
and those alleged by the respondent in so far as his version is
plausible and credible.
[19]
In
the discussion that follows herein below I attempt to apply the above
legal principles.
Discussion
[60] What can
be accepted as incontrovertible is that admission to the University
and registration to study towards
a specific qualification are two
distinct processes with different rules and requirements. In the
instant matter no issue arises
regarding the applicant’s
admission to the University. Suffice to state that as provided for in
the University’s 2024
prospectus, for any student to report for
registration, they must have received notification in writing from
the Registrar that
they have been admitted.
[61] I
venture to state that the applicant’s admission into the
University would in the instant case indeed constitute
a firm offer
by the University for her to register to study towards the B.Ed
qualification. Herein below I deal first with whether
the applicant
has proven that she validly accepted an offer from the University. I
later deal with whether the applicant has made
out a case regarding
the alleged violation of her constitutional right to further
education.
Has valid acceptance
of the offer been proven?
[62] It is
worth noting that no provision appears from the University’s
2024 prospectus that I was referred to,
for a specific manner of
acceptance of the firm offer by the University before a student may
report for registration. Apart from
this, on her own showing, the
applicant received and telephonically accepted the University’s
firm offer to enroll or register
for the B.Ed qualification on 24
January 2024. She would, on the University’s unchallenged
version, have been competing with
501 students for space among the
110 spaces that were the maximum allowed for the B.Ed qualification.
[63] It is
indeed a common cause fact between the applicant and the University
that it is only after a student receives
communication from the
Registrar that he or she has been admitted that he or she will report
for registration on the University’s
registration portal.
[64] Herein
lies the problem I have with the applicant’s version – as
its name suggests, the admission status
check
per
Annexure B
on which she relies to prove her admission, connotes that the
applicant obtained this document when she went online
to ascertain
her admission status. Furthermore, as gleaned from the extract of the
said Annexure B which I provided earlier on
in this judgment, the
portal would have prompted the applicant to use her Identity number
or reference number in order for her
to obtain her admission status.
[65] To my
mind, Annexure B cannot be equated with a notification in writing
from the Registrar that the applicant was
admitted. It contains no
date on which the offer was made, nor does it contain the terms on
which the applicant was admitted into
the B.Ed qualification. I must
not be understood to be saying that the applicant’s admission
per se
is cast into doubt by her production of Annexure B. It
is a fact that the University admits that she was indeed admitted to
register
for the B.Ed qualification.
[66] While
the University admits the fact of the applicant’s admission to
register for the B.Ed Degree, it was
important for the applicant to
adduce clear and cogent evidence of the date on which the University
made the offer, and the terms
of the offer. The date and terms of the
offer by the University become important when regard is had to the
University’s uncontroverted
version that registration was on
first come first served basis.
[67] I may
add that in as much as the applicant states in her founding affidavit
that the firm offer that she received
on 24 January 2024 had as one
of its terms the payment of the minimum registration fee, Annexure B
does not state this term of
the said offer.
[68]
What this means is that, if, as the applicant suggests, it was also a
term of the offer that the University made
to her, that it would keep
the said offer open for acceptance within a period of 3 days, the
onus was on her to prove such a term
by adducing cogent evidence. It
must be understood that an undertaking to keep an offer open for
acceptance by the offeree for
a specified or unspecified period (
an
option contract
),
is a contract on its own albeit infused in the main agreement. This
kind of offer is irrevocable and must be distinguished from
an
ordinary offer which is made subject to a time limit, which the
offeror may revoke at any time before its acceptance. If not
withdrawn, this latter offer lapses if it is not accepted within the
specified period, or reasonable time if no period has been
stipulated
for its acceptance.
[20]
[69] The
effect of the applicant’s failure to produce the Registrar’s
notification in writing that she was
admitted into the B.Ed
qualification on 24 January 2024 creates a
lacuna
in her
version. Furthermore, in the light of the undisputed provisions of
the University’s 2024 prospectus that registration
is on first
come first served basis; and in the absence of notification in
writing from the Registrar setting out the terms of
her admission,
the applicant’s version that provision was made for acceptance
of the offer within 3 days cannot stand either.
For the aforegoing
reasons, the admission status check (Annexure B) is of no assistance
to her in this regard.
[70] The
question that remains is whether as contended by the applicant, the
offer that the University made to her was
an open one which she could
accept at her convenience.
[71]
Significantly, nothing suggests that the University’s offer was
exclusive to the applicant. Clause 1.11 of
the University’s
2024 prospectus provides that students register online on first come
first served basis subject to the availability
of space. What this
postulates is that admission on its own does not provide a student
with automatic registration for a particular
course of study.
[72] There is
nothing unusual about the kind of offer that the University made in
the nature of its admission and registration
systems. I hold the view
that it was, instead, a general offer directed at those students whom
the University selected as meeting
the minimum requirements for
admission with the applicant being one of them.
[73] On the
facts of the application, and in the light of the fact that the
University’s 2024 prospectus does
not state the manner in which
that offer may be accepted. An interpretation of the rules of
admission and registration contained
in the prospectus must therefore
be considered.
In casu
, such an interpretation ought to lead
to a conclusion that it is those students who complete their
registration while the offer
remains open for acceptance who would
then have concluded a binding contract with the University. In the
context of the present
case, those would be the first students to
take up the maximum 110 spaces determined as the University’s
quota for the B.Ed
Degree.
[74]
Therefore, even if it were to be accepted that the applicant first
had to verbalize her acceptance of the offer
by phoning the office of
the Registrar, this would not detract from the fact there is no
evidence before me which suggests that
it was an irrevocable offer
which the University kept open for her acceptance at her convenience.
[75] At the
risk of stating the obvious, the fact that the registration is on a
first come first served basis connotes
that registration must be done
with the necessary promptitude. The University’s unchallenged
version is that this applied
to the quota of 110 vacancies for the
B.Ed qualification. It therefore stands to reason that the type of
contract and the peculiar
circumstances of each case must determine
what constitutes reasonable time where no specific time is stipulated
for acceptance
of the offer.
[76] This
brings me to Mr
Vobi
’s submission that the applicant had
to register within reasonable time. According to him, reasonable time
would in this case
mean until the commencement of lectures. It has
not been disputed that the B.Ed Degree only had 110 spaces for 2024.
I hold the
view that it would defy logic in such circumstances if, as
against its first come first served basis of registration, the
University
would simultaneously open registration until the
commencement of lectures. This view is fortified by the University’s
uncontroverted
version that its qualifications historically become
fully subscribed within 30 minutes of the opening of registration. Mr
Vobi
’s submission that reasonable time in this case
meant ‘until the commencement of lectures’ cannot be
sustained.
[77]
Furthermore, the contention made on behalf of the applicant that her
admission by the University amounted to an
irrevocable offer (
an
option from which a contractual right resulted
)
can equally not be sustained. I have already mentioned that an offer
would be irrevocable where the offeror contracts with the
offeree to
keep the offer for a specific time.
[21]
I have already stated that there is no indication upon a
consideration of the facts of this application that the University
offered
to keep the offer open for a specific time for the
applicant’s acceptance. The applicant’s contention that
the offer
by the University was an irrevocable one has no correlation
with any of the evidentiary material placed before court in this
application.
The applicant’s
reliance on Mbana
[78]
Mr
Vobi
’s
reliance on
Mbana
in support of the applicant’s contention regarding breach of
contract and a violation of the applicant’s right to further
education is misplaced for the following reasons – it is not a
case advanced by the applicant that the University’s
admission
and registration policy is unlawful and unconstitutional to the
extent that it excluded her from registration by limiting
the B.Ed
Degree quota to 110 vacancies. Nor is it her case that the
University’s non-disclosure of the number of spaces that
were
available for registration made it impossible for her to register
before the B.Ed qualification became fully subscribed.
[79] In
addition, and in any event, the applicant in
Mbana
produced
proof of written notification by the University dated 07 February
2023 that he was admitted to the B.Ed Degree. This written
notification contained the University’s terms of the offer
which the court found were not set out clearly and with certainty.
That has not been the case
in hoc casu
– the applicant
relied on a copy an undated screenshot (Annexure B) being the results
of her own admission status check.
For these reasons
Mbana
is
distinguishable from the instant case on the facts.
[80] The
respondent’s version is that acceptance of its offer is done by
inter alia
registration on the online portal. I note that the
University does not state that the applicant could not have made a
telephone
call to the office of the Registrar and that her acceptance
of the offer by means of a telephone call rendered the acceptance
invalid.
Since the University produced no countervailing evidence of
a prescribed method of acceptance of the offer, I hold the view that
what should be of importance in such a case is the student’s
manifestation of his or her acceptance of the offer in some
way. That
could be telephonically or by some other clear and acceptable
communication to the University. It must be accepted that
in the
instant case, nothing barred the applicant from verbalizing her
acceptance of the offer telephonically.
[81]
Whether by her acceptance the applicant could still bind the
University to a contract is a different issue which
is at the centre
of this application. I note that the applicant states that
after she accepted the University’s offer,
she was ‘cleared
for registration’. She states this without explaining how she
was ‘cleared’.
[82] While I
sympathize with the applicant, to my mind, even if it were to be
accepted that she manifested her acceptance
of the offer on 24
January 2024, once the 110 spaces had been taken up, no student would
then be registered. The corollary of this
is that any attempt by the
applicant to register for the B.Ed Degree after the University had
reached its quota became inoperative.
Put differently, after the
University had reached the quota of 110 students for the B.Ed Degree,
the applicant’s telephonic
acceptance of the offer and payment
of the registration fee could not bring about a contract that would
be binding on the University.
[83] That
being the case, the applicant makes a contradictory averment in her
replying affidavit that the reason for
her telephone call to the
office of the Registrar was to get assistance as she experienced
unspecified problems with the online
registration portal. This tends
to deal her case regarding the real purpose of the said telephone
call, a fatal blow.
[84] The
upshot of the aforegoing is that the applicant has failed to prove
that a contract came into existence between
her and the University.
Therefore, no basis has been established for this Court to enforce
any contract as none has been proven.
The violation of the
right to further education
[85] The
applicant states that by refusing to register her and giving away her
space to another student despite her
admission, the University
breached her constitutional right to further education.
[86]
An applicant must stand and fall by his or her founding affidavit.
This is trite law.
[22]
The
applicant’s attempt in her heads of argument to challenge the
University’s policy that registration of students
is subject to
availability of spaces cannot come to her aid. The function of
affidavits in application proceedings is not only
to identify the
issues between the parties as would do pleadings in action
proceedings, but also to place evidence before court,
and the
deponent to an affidavit must clearly and concisely set out the facts
relied upon in the affidavit.
[23]
This is so because whatever case the applicant sets out in her
founding papers, is a case that the respondent must confirm or
refute.
[87] Her
allegation that the University violated her constitutional right to
further education when it refused to register
her must be viewed
against the fact that she has not mounted a challenge to the
University’s admission and registration policy,
whether as to
the manner of admission and registration, or the extent of its quota
for its B.Ed qualification. Even though the
applicant alleges, at
most, that she made a call to the office of the Registrar because she
experienced problems with the registration
portal, she doesn’t
spell out what those challenges were.
[88]
Important to note is that section 29(1)
(b)
of
the Constitution provides a right to further education, which the
state, through reasonable measures, must make progressively
available
and accessible. Paramount to the right provided in section 29(1) is
an obligation of the state to make further education
progressively
available and accessible through reasonable measures.
[24]
[89]
For the sake of completeness, the Court in
Government
of the Republic of South Africa and Others v Grootboom and
Others
[25]
,
set out the interpretation of these elements, and I conveniently
summarize it as follows:
(1)
The measures taken by the state must be
reasonable both in their conception and implementation. They must be
supported by appropriate,
well-directed policies and programmes with
due regard being had to social, economic and historical context and
must be balanced
and eschew exclusion of a significant segment of
society; must be capable of responding to the needs of those most
desperate in
society.
(2)
Progressive realization entails progressive
facilitation of accessibility which involves an examination of legal,
administrative,
operational and financial hurdles which should
lowered over time where possible. The third defining aspect of the
obligation to
take the requisite measures is that the obligation does
not require the state to do more than its available resources permit.
This
means that both the content of the obligation in relation to the
rate at which it is achieved as well as the reasonableness of the
measures employed to achieve the result are governed by the
availability of resources.
(3)
Given this lack of resources and the
significant demands on them that have already been referred to, an
unqualified obligation to
meet these needs would not presently be
capable of being fulfilled. The measures must be calculated to attain
the goal expeditiously
and effectively but the availability of
resources is an important factor in determining what is reasonable.
[90] The
applicant has not in any way challenged the University’s
admission and registration policy as not meeting
the threshold of
section 29(1)(b). In contrast, her version establishes that she was
on equal footing with the rest of the applicants
in relation to the
University’s first time first served basis of registration. Her
averment that the failure or refusal of
the University to register
her violated her right to further education cannot be sufficient to
impugn the University’s conduct
in refusing her registration.
[91] It
cannot be sufficient that it is in her heads of argument that the
applicant states that the University was not
justified in excluding
her from registration on the basis of its first come first served
registration policy, whereas she did not
set out sufficient facts in
her affidavit to substantiate this conclusion. The argument posited
on her behalf in her heads of argument
cannot substitute the
evidential material that this Court would require in assessing
whether the University was justified to begin
with, in excluding
students from registration based on its quota requirements. The
applicant’s assertion that her constitutional
right to further
education has been violated by the University can therefore not be
sustained.
A remark in passing
[92] By its
nature, a
rule nisi
with an adjunct of an interim order serves
to provide interim relief while the court adjudicates the matter. I
am not unmindful
of the fact that in the instant case, the interim
order directing the University to allow the applicant to register for
the B.Ed
Degree had an effect of a final order in the sense that
registering for this qualification was the very same right that the
applicant
sought to vindicate.
[93] This
fact notwithstanding, I see no reason why the applicant should, in
the specific circumstances of the present
case, and at least for the
present, be allowed to benefit from continuing to exercise a right
which she secured by circumventing
the University’s
registration policy. Floodgates would be opened, I think, if the
University’s prospective students
would be allowed to utilize
proceedings in this Court as a means to secure registration when they
have failed to act in accordance
with the policy prescribed by the
University for registration and be vigilant in so doing.
Costs
[94]
The instant application was, in my view, the applicant’s
genuine attempt to vindicate her constitutional
right to further
education. I am acutely alive of my duty to guard against the
unmerited labelling of litigation as constitutional
litigation, lest
there be an abuse of the protection that a litigant has against
payment of costs even where he/she is unsuccessful.
I do not believe
that the present application was frivolous and vexatious. Therefore,
the applicant must benefit from the
Biowatch
principle,
and be exonerated from paying the University’s costs.
[26]
Order
[93] In the
result, the following order shall issue:
1.
Any non-compliance by the applicant with the Uniform Rules of Court
regarding the enrolment of
this matter is hereby condoned. This
application is hereby heard and determined as one of urgency as
envisaged in Rule 6(12) of
the Uniform Rules of this Court; and the
forms and time frames regarding service as prescribed by the Uniform
Rules are hereby
dispensed with.
2.
The application is dismissed, with the
rule nisi
dated 07
February 2024 being hereby discharged.
3.
Each party shall pay its own costs.
_________________
L. RUSI
JUDGE OF THE HIGH COURT
Appearances:
Counsel for the applicant
:
Adv S I Vobi
Adv
A Nase
Instructed by
: ABONGILE DUMILE ATTORNEYS INC.
18 Park Road
MTHATHA
Counsel for the first and
second
respondents
:
Adv
J L
Hobbs
Instructed by :
DRAKE FLEMMER & OSMOND (EL)
INC.
TM
Madala Chambers
14 Durham Street
MTHATHA
Date heard:
05 and 06 March 2024
Date delivered:
28 May 2024
[1]
Section
78 of the Statute of Walter Sisulu as published in Government Notice
No. 13 (Government Gazette no. 37235) dated 14 January
2014,
provides for the council’s powers to admit any person who
satisfies legal requirements for admission and any further
requirements for admission as may be laid down by the council and
laid down in the Rules, as well as other matters related to
admission and registration of students.
[2]
Section
37
of the
Higher Education Act 101 of 1997
provides:
(1) Subject to this Act,
the Council of a public higher education institution, after
consulting the Senate of the public higher
education institution,
determines the admission policy of the public higher education
institution.
(2) The council must
publish the admission policy and make it available on request.
(3) The admission policy
of a public higher education institution must provide appropriate
measures for the redress of past inequalities
and may not unfairly
discriminate in any way.
(4) Subject to this Act,
the Council may, with the approval of the Senate –
(a) determine entrance
requirements in respect of particular higher education programmes;
(b) determine the number
of students who may be admitted for a particular higher education
programme and the manner of their selection;
(c) determine the
minimum requirements for readmission to study at the public higher
education institution concerned; and
(d) refuse readmission
to a student who fails to satisfy such minimum requirements for
readmission.
[3]
The
Constitution of the Republic of South Africa, Act 108 of 1996.
[4]
Luna
Meubels Vevaarrdigers (Edms) BPK v Makin (t/a Makin’s
Furniture Manufacturers)
1977
(4) SA 135
(W);
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others
(11/33767)
[2011] ZAGPJHC 196 (23 September 2011).
[5]
Head
of Department, Department of Education, Free State Province v Welkom
High School and Another; Head of Department, Department
of
Education, Free State Province
v
Harmony
High School and Another
(CCT 103/12)
[2013] ZACC 25
;
2013 (9) BCLR 989
(CC);
2014 (2) SA 228
(CC) (10 July 2013); Head of Department Mpumalanga Department of
Education and Another v Hoërskool Ermelo and Another (CCT
40/09)[2009] ZACC 32;
2010 (2) SA 415
(CC) ;
2010 (3) BCLR 177
(CC)
(14 October 2009).
[6]
Moko
v Acting Principal of Malusi Secondary School and Others
(CCT 297/20)
[2020] ZACC 30
;
2021 (3) SA 323
(CC);
2021 (4) BCLR 420
(CC); (2022) 43 ILJ 2269 (CC) (28 December 2020).
[7]
Mbana
v Walter Sisulu University and Others
(846/2023) [2023] ZAECMHC 9 (7 March 2023) (“
Mbana
”).
[8]
Visser,
Pretorious, Sharrock and Van Jaarsveld – Gibson’s South
African Mercantile & Company Law (Juta) 8
th
Edition, at 29 -39.
[9]
Op
cit
,
at 34.
[10]
AJ
Kerr - The Principles of the Law of Contract, Sixth Edition (Lexis
Nexis) (2002), at 61-74.
[11]
1912
AD 343.
[12]
Op
cit
,
at 350.
[13]
Haynes
v King Williamstown Municipality
1951
(2) SA 371
(A) at 378F-379B;
S.A.
Cooling Services (Pty) Ltd v Church Council of the Full Gospel
Tabernacle
1955
(3) SA 541
(D), at 543H; SWJ Van der Merwe Contract-General
Principles 4 ed (2011) at 331.
[14]
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
2005(6)
SA 205(SCA) at para17 and 18.
[15]
Durban
City Council v Association of Building Societies
1942
AD 27
;
Reinecke
v Incorporated General Insurances Ltd
1974(2) SA 84 (A) at 95C.
[16]
1996
(1) BCLR 1
(CC),
1996 (1) SA 984
(CC),
[1995] ZACC 13
('
Ferreira
')
at para 44).
[17]
Moise
v Greater Germiston Transitional Local Council: Minister of Justice
and Constitutional Development Intervening (Women's
Legal Centre as
Amicus Curiae)
2001
(4) 491 (CC),
2001 (8) BCLR 765
(CC),
[2001] ZACC 21
para 19;
Minister
of Home Affairs v National Institute for Crime Prevention and the
Reintegration of Offenders
2005
(3) SA 280
(CC),
2004 (5) BCLR 445
(CC),
[2004] ZACC 10
para 36.
[18]
Plascon-
Evans Paints Ltd v Van Riebeck Paints
(Pty) Ltd 1984(3) SA 620 (SCA).
[19]
Airports
Company South Africa Soc Ltd v Airports Bookshop (Pty) Ltd t/a
Exclusive Books
,
2017 (3) SA 128
(SCA) para 26.
[20]
Kerr
footnote 8 supra, at 74; and 82 – 84.
[21]
Anglo
Carpets (Pty) Ltd v Snyman
1978 (3) SA 582 (T).
[22]
Director
of Hospital Services v Mistry
1979
(1) SA 626
(AD)
at 635H – 636D.
[23]
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and
Others
1999
(2) SA 279
(T) at 323F – 324D.
[24]
Moko
,
para 27.
[25]
Government
of the Republic of South Africa and Others v Grootboom and Others
(CCT11/00)
[2000] ZACC 19
;
2001 (1) SA 46
;
2000 (11) BCLR 1169
(4
October 2000) para 39-46.
[26]
Biowatch
Trust v Registrar Genetic Resources and Others
(CCT
80/08)
[2009] ZACC 14
;
2009 (6) SA 232
(CC) ;
2009 (10) BCLR 1014
(CC) (3 June 2009), para 43.