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2024
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[2024] ZALMPPHC 60
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Kusainda v University of Limpopo (11854/2023) [2024] ZALMPPHC 60 (7 June 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 11854/2023
(1)
REPORTABLE: NO
(2)
OF INTEREST TO THE JUDGES: NO
(3)
REVISED
DATE
07 06 2024
SIGNATURE
In
the matter between:
DICKIEL
KUSAINDA
APPLICANT
-and-
UNIVERSITY
OF LIMPOPO
RESPONDENT
JUDGMENT
BRESLER
AJ:
Introduction:
[1]
The Applicant applies in terms of the provisions of Uniform Rule 53
and 6 for the judicial review and setting aside under the
provisions
of the
Promotion of Administrative Justice,
Act 2 of 2001
(hereinafter ‘PAJA’) of the administrative decision of
the Executive Committee of the Senate of the Respondent
taken on the
5
th
of June 2023 to withdraw from the agenda of its
meeting the Applicant’s application for review of:
1.1 The decision of the
Post Graduate Appeal Committee on 26 April 2023 to uphold the
decision not to approve the appointment of
external assessors to
evaluate the Applicant’s doctoral thesis; and
1.2 The decision to
terminate the Applicant’s studies and registration with the
Respondent.
[2]
In the alternative to the above, the Applicant prays for a review of
the administrative action in as far as the Senate failed
to take a
decision on the review application.
[3]
The Applicant furthermore prays for an order declaring that the
Applicant has a right to:
3.1 Have his doctoral
theses submitted to a panel of external assessors for the evaluation
thereof; and
3.2 Continue his studies
and to remain registered as a student at the University pending the
finalisation of the evaluation and
examination of his doctoral
thesis.
[4]
The Applicant also applies for an order:
4.1 Declaring that the
Respondent’s decision, alternatively failure to take a
decision, infringes the constitutional rights
of the Applicant.
4.2 Declaring that the
termination of the Applicant’s registration as a student of the
Respondent constitutes an infringement
of his rights.
4.3 Directing the
Respondent, within 30 (thirty) days of the date of service of the
order, alternatively such period of time as
the Court may determine,
to take a decision on the Applicant’s review application.
4.4 Setting aside the
decision to withdraw Applicant’s registration as a student with
the Respondent and directing the Respondent
to re-instate the
Applicant’s registration.
[5]
The common cause facts in this matter are fairly uncomplicated.
[6]
The Applicant is an adult male Malawian citizen currently residing on
the Respondent’s Turfloop campus.
[7]
On the 15
th
of January 2019, the Respondent accepted the
Applicant to study a Doctor of Philosophy (‘PhD’) in
International Relations
in the School of Social Sciences. The
acceptance was premised on the following documents presented in
corroboration of his
academic qualifications:
7.1 The Degree of Master
of Science in Strategic Management awarded to the Applicant by the
University of Derby in October 2007.
7.2 A Degree / Diploma
Supplement issued by the Registrar of the University of Derby in
respect of his Master of Science in Strategic
Management.
7.3 A SAQA certificate of
Evaluation which recognises
inter alia:
7.3.1 the University of
Derby as a ‘recognised institution in the United Kingdom with
own degree awarding powers’.
7.3.2 the Applicant’s
Master of Science (Strategic Management) degree as falling within the
South African organising field
classified as ‘Business,
Commerce and Management Studies’.
7.3.3 The Applicant’s
eligibility for access to further postgraduate doctoral studies.
7.3.4 Recognises the
closest comparable South African qualification as a Master of
Commerce: Strategic Management at NQF Level 9.
[8]
The Respondent’s admission requirements for a PhD are ‘a
relevant Masters’ Degree or equivalent qualification.’
[9]
The Postgraduate Departmental Selection Committee approved the
application to study full time and Professor KB Shai, the Head
of the
Department, Cultural and Political Studies was allocated as the
Applicant’s supervisor.
[10]
The Applicant commenced with his studies and research after 19 April
2019.
[11]
The title of the Applicant’s proposed PhD is:
‘
South African
Defence Force Participation in the maintenance of the United Nations
Security Council International peace and security
resolutions: An
exploratory Afrocentric perspective, 2007 – 2020’.
[12]
The Faculty of Humanities Higher Degrees meeting held on the 11
th
of September 2019 approved the research proposal.
[13]
On 5 February 2020, the Turfloop Research Ethics Committee issued an
Ethics Clearance Certificate for the approved title in
respect of a
PhD degree in International Politics in the School of Social Science.
[14]
The Applicant remained registered as a student at the Respondent for
the successive years of 2020 to 2022 for the same PhD
program.
[15]
On or about the 13
th
of June 2022, the internal assessment
of the Applicant’s PhD thesis was completed. Prof. Shai
initiated a request to the
Director of the School of Social for the
Approval of Assessors for the external examination of the Applicant’s
PhD thesis.
[16]
On the 14
th
of June 2022, Prof. Shai was informed that the
FEC discovered a ‘serious issue with vertical articulation’
and the
matter was referred back to the School to investigate.
[17]
After having received submissions from the School, Prof Shai was
informed on or about the 13
th
of July 2022
inter alia
that:
17.1 The motivation
from the School on the articulation of the qualifications was deemed
insufficient and less convincing.
17.2 The matter was
discussed with the Director, Quality Assurance with reference to the
SAQA documents.
17.3 The
Applicant’s Master’s Degree is deemed compatible with a
MSc in Commerce. His formative degrees
are also in Business and
Commerce.
[18]
Prof Shai then presented an Internal memorandum to the Director,
School of Social Sciences, which dealt with the non-appointment
of
external assessors and the issue of ‘vertical articulation’.
[19]
On or about the 18
th
of August 2022, the outcome of the
Faculty Exco meeting was stated as follows:
‘
Assessors Not
approved after another representation on articulation from the
Department.’
[20]
On the 13
th
of January 2023, the Applicant was informed
that his studies have been terminated. The Applicant thereafter
has taken all
the required steps to exhaust the internal remedies.
[21]
The Applicant lodged an appeal to the Post Graduate Appeal Committee
against the decision to refuse to appoint external assessors
and the
decision to terminate his registration as a student.
[22]
In response the Respondent stated:
‘
The Appeal is
not Approved. The student has appealed, and based on the
information provided, the decision that the Faculty
took to terminate
the student’s registration for irregular admission is correct’.
[23]
The Applicant lodged an internal appeal with the Registrar which was
referred to the Senate Exco. On the 5
th
of June
2023, the Senate Exco (ECS) recorded:
‘
2. The meeting
considered the item as part of the confirmation of the agenda for the
day and unfortunately took the view that the
matter was thoroughly
dealt with in the previous meeting of which the outcome was
communicated on the 26
th
of April 2023.
3. Consequently, the
item was withdrawn from the agenda.
4. The position of the
ECS is that the decision as communicated earlier stands.
[24]
It is this decision that forms the subject of the review application
currently before court.
[25]
During argument, counsel for the Respondent conceded
inter alia
that there were some irregularities and that it is indeed
unfortunate. He furthermore submitted that the issue of the
alleged
erroneous admission should have been a self-review. It
was recorded that he holds instructions to the effect that the
Respondent
is willing to re-assess the position of the Applicant
subject to timelines being set by this court. This proposal was
rejected
by the Applicant.
[26]
Counsel reminded the Court that the Respondent is a creature of
statute and that it is therefore bound to comply with its
prescripts. If there is an irregularity in the admission, the
Senate has a fiduciary obligation to ensure that the irregularity
does not tarnish the standard upheld by the Respondent.
[27]
Counsel for the Applicant persisted in his case as set out in the
Applicant’s papers before court.
Application
of law to the facts:
[28]
Section 33(1) and (2) of the
Constitution
, 1996 provides that
everyone has the right to administrative action that is lawful,
reasonable and procedurally fair and that everyone
whose rights have
been adversely affected by administrative action has the right to be
given written reasons.
[29]
PAJA was promulgated to give effect to this constitutional right.
[30]
The failure and / or refusal by the Executive Committee of the Senate
to entertain the review of the Applicant, has resulted
in effect in a
failure and / or refusal by the Executive Committee of the Senate to
make a final decision on:
30.1 The approval of the
appointment of external assessors to evaluate the Applicant’s
doctoral thesis; and
30.2 the termination of
the Applicant’s studies and registration with the Respondent.
[31]
A court has
the power to review an administrative action if the action concerned
consist of the failure to take a decision.
[1]
It is evident that the Respondent failed to take a final
decision, granting this court the power to review the administrative
action.
[32]
At the heart of this decision (or rather failure to take a final
decision), lies the previous administrative actions relating
to the
refusal to appoint external assessors and the Applicant’s
termination of his studies.
[33]
The Applicant submitted that the decision not to appoint external
assessors is reviewable premised essentially on the following
grounds:
29.1 Relevant
consideration were not taken into consideration.
29.2 Procedural
unfairness of the administrative decision.
29.3 Rationality of
the decision.
29.4
Unreasonableness.
29.5 The decision
was otherwise unconstitutional and unlawful.
29.6 The decision
constituted a failure to take a decision.
29.7 The decisions
were procedurally unfair in relation to Applicant’s legitimate
expectations.
[34]
This Court agrees with the submission by the Applicant that the
Respondent failed to consider that the Respondent accepted
as
appropriate the articulation of the Applicant’s Master’s
degree with his proposed field of doctoral study.
This decision
continued to stand and was not reversed or reviewed.
[35]
During the
proceedings, this Court raised the question of whether the
functus
officio
doctrine
does not apply in the circumstances. Hoexter
[2]
states that ordinarily an administrator will be
functus
officio
once
a final decision has been made and will not be able to revoke the
decision in the absence of statutory authority. She
furthermore
states that where a mistaken decision was made, the administrator
will be
functus
officio
irrespective
of whether the mistake was one of fact or law, and whether it was
within or beyond the administrator’s jurisdiction.
An
exception may exist if the error comes to the administrator’s
attention as soon as the decision has been announced.
[36]
In casu
it is common cause that the original decision to
approve the Applicant’s enrolment for PhD studies has not been
revoked or
reviewed. In this court’s view, the Respondent
is therefore
functus officio
in this regard and cannot revisit
the decision until same is set aside by a court of law.
[37]
This
approach was confirmed in the matter of
Member
of the Executive Council for Health, Eastern Cape and Another v
Kirkland Investments (Pty) Ltd t/a Eye and Lazer Institute
[3]
referred
to by the Applicant in his Heads of Argument.
[38]
The Senate Exco’s refusal to appoint external assessors failed
to consider that the Respondent cannot revisit the admission
at this
late stage and in the absence of a formal self-review. This
constitutes a ground for review as contemplated in Section
6(2)(e)(iii) of PAJA.
[39]
It stands to be noted that the Senate Exco was mistaken as to the
nature of the Applicant’s Master’s Degree.
It is
common cause that he holds an MSc in Strategic Management and not
Developmental Studies. This material mistake of fact,
in
itself, also constitutes a ground of review.
[40]
Having stated the aforesaid, the defence as stated by the Respondent
holds no water. In the absence of a review and setting
aside
the original decision to admit the Applicant to the PhD studies, the
subsequent refusal to submit his doctoral thesis to
external
examiners is fundamentally flawed, administratively unfair and must
be reviewed and set aside.
[41]
As to the decision to terminate the studies of the Applicant, the
following grounds for review was raised:
41.1 Procedural
unfairness of the termination.
41.2 Relevant
consideration were not taken into consideration.
[42]
The Applicant stated in its Founding affidavit that he was merely
informed that his studies was terminated. Prior to
taking the
decision, the Applicant was not afforded any opportunity to address
the Respondent.
[43]
This renders the decision procedurally unfair as contemplated in
Section 3(2)(b) and 6(2)(c) of PAJA.
[44]
Both decisions, being the
crux
of the item on the agenda of
the meeting of the 5
th
of June 2023 are, in themselves,
administratively unfair and inherently reviewable. As stated
herein before, numerous further
grounds for review of the said
decisions were raised by the Applicant. It is not
necessary for this court to consider
the remaining grounds. Suffice
to state that the failure to consider these decisions at the meeting
held on the 5
th
of June 2024 was tantamount to infringing
the Applicant’s right to fair administrative action that is
lawful, reasonable
and procedurally fair.
[45]
In
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others
v
Chief
Executive Officer, South African Social Security Agency, and
Others
[4]
the following was stated:
‘
[25]
Once a ground of review under PAJA has been established there is no
room for shying away from it. Section 172(1)(a) of
the
Constitution requires the decision to be declared unlawful. The
consequences of the declaration of unlawfulness must then
be dealt
with in a just and equitable order under s 172(1)(b). Section 8
of PAJA gives detailed legislative content to the
Constitution's
'just and equitable' remedy.’
[46]
In as far as grounds for review has been established, the impugned
decision taken on the 5
th
of June 2023 must therefore be
declared unlawful and set aside and the Applicant is accordingly
entitled to the relief set out
in the Founding affidavit relating
thereto.
[47]
As to the
declaratory relief, this court has the power to grant any order that
is just and equitable, including an order declaring
the rights of the
parties in relation to the decision.
[5]
As stated before, the original decision allowing the Applicant entry
into the PhD program has not been reviewed or set aside.
It
follows that the Applicant is eligible to have his doctoral thesis
examined by external assessors so that his degree can be
completed.
For purposes hereof, he needs to remain enrolled as a student at the
Respondent.
[48]
The declaratory relief is thus warranted under the prevailing
circumstances.
[49]
This Court
feels compelled to emphasize the following words of the Honourable
Khampepe J
[6]
:
‘
There are few
things as important for the flourishing of a society and its people
as education. Through education, doors are
opened to
opportunities that were never dreamt of before. I am not
exaggerating when I say that education changes lives.
It
enriches and develops our children so that they may reach the height
of their potential. And, as our citizens are empowered
through
education to improve their future and achieve their dreams, our
nation will undoubtedly prosper too.
[50]
Although the Applicant is not
per se
a citizen of South
Africa, the sentiment remains the same. The Respondent, as an
educational institution, has a moral and
ethical duty empower people
through education rather than taking a pedantic approach. The
Respondent will be well-advised
to revisit its policies and
procedures to provide for meritorious individual circumstances.
Costs:
[51]
Although
the Court has not considered all the grounds of review, the Applicant
is substantially successful in claiming the relief
as set out in its
Notice of Motion. In
Biowatch
Trust v Registrar, Genetic Resources and Others
[7]
it
was stated that the State should bear the costs if the challenge to
the constitutionality of a law or of State conduct was ‘genuine’
and ‘non-frivolous’.
[52]
This Court does not perceive any reason to deprive the Applicant of
his costs.
[53]
The Applicant’s counsel recorded that they are acting
pro
bono
in this matter. The Respondent submitted that, in as
far as they act
pro bono,
no cost order should be awarded
against the Respondent in the event of being successful.
[54]
Section 92 of the
Legal Practice Act
, Act 28 of 2014 provides
for the recovery of legal cost by practitioners who render free legal
services. It is thus beyond
doubt that this court is empowered
to make a cost order in favour of the Respondent.
[55]
As to the scale of fees to counsel as contemplated in Uniform Rule
67A(3)(a), this court is satisfied that, having regard to
the
complexity of the matter, the extent of the record, the importance
that the matter has to the Applicant and the lack of unethical
or
reprimandable conduct by the legal representatives of the Applicant,
that costs to counsel of Scale C is warranted, such costs
to include
the costs of two counsel where so employed.
Order:
[56]
In the result the following order is made:
56.1 The decision
taken by the Executive Committee of the Senate of the Respondent on
the 5
th
of June 2023 to withdraw from the agenda of its
meeting, the Applicant’s application for the review of:
56.1.1 The decision of
the Post Graduate Appeal Committee on 26 April 2023 to uphold the
decision not to approve the appointment
of external assessors to
evaluate the Applicant’s doctoral thesis; and
56.1.2 The decision to
terminate the Applicant’s studies and registration with the
Respondent
is hereby reviewed and
set aside.
56.2 It is declared that:
56.2.1 The Applicant has
a right to have his doctoral theses submitted to a panel of external
assessors for their evaluation thereof;
and
56.2.2 The Applicant has
a right to continue his studies and to remain registered as a student
of the Respondent pending the finalisation
of the evaluation and
examination of his doctoral thesis.
56.2.3 The Respondent’s
decision, alternatively the Respondent’s failure to take a
decision on the Applicant’s
internal review relating to the
referral of his doctoral thesis to external assessors constitutes an
infringement of the Applicant’s
constitutional rights.
56.2.4 The Respondent’s
decision to terminate the Applicant’s registration as a student
of the Respondent constitutes
an infringement of the Applicant’s
rights.
56.3 The Respondent is
directed to, within 30 (thirty) days from the date of judgment, take
a decision on the Applicant’s
review application.
56.4 The Respondent is
herewith directed to re-instate the Applicant’s registration as
a student with the Respondent pending
the finalisation of the
evaluation and examination of his doctoral thesis.
56.5 The Respondent is
ordered to pay the Applicant’s costs of the application
including the costs of two counsel, where so
employed, on Scale C.
M BRESLER
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
FOR
THE APPLICANT
:
Adv
M Antrobus SC
Adv
I Nongogo
INSTRUCTED
BY
:
Webber
Wentzel
Odette.geldenhuys@webberwentzel.com
Nkosinathi.thema@webberwentzel.com
Jos.venter@webberwentzel.com
FOR
THE RESPONDENT
:
Adv
MS Mangolele SC
INSTRUCTED
BY
:
Dikgati
Mphahlele Attorneys Inc
admin@dmainc.co.za
DATE
OF HEARING
:
27
May 2024
DATE
OF JUDGMENT
:
6
June 2024
[1]
Section 6(2)(g) of PAJA
[2]
Hoexter,
Administrative
Law in South Africa
,
Second Edition, Juta at 278
[3]
2014 (3) SA 481
(CC) at [90] to [92]
[4]
2014 (1) SA 604
(CC)
[5]
Section 8(2) of PAJA
[6]
In
Moko
v Acting Principal, Malusi Secondary School and Others
2021
(3) SA 323
(CC) at [1]
[7]
2009 (6) SA 232
(CC) at [22]