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[2024] ZALMPPHC 91
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Masisi-Letele v University of Limpopo and Others (4047/2022) [2024] ZALMPPHC 91 (27 September 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 4047/2022
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
DATE:
27-9-2024
SIGNATURE:
In
the matter between:
MASISI-LETELE
SIMON
APPLICANT
And
UNIVERSITY
OF LIMPOPO
FIRST
RESPONDENT
REGISTRAR
FOR THE UNIVERSITY
OF
LIMPOPO
SECOND
RESPONDENT
THE
EXECUTIVE COMMITTEE OF SENATE
OF
UNIVERSITY OF LIMPOPO
THIRD
RESPONDENT
DEAN
OF THE FACULTY OF MANAGEMENT
AND
LAW, UNIVERSITY OF LIMPOPO
FOURTH
RESPONDENT
MINISTER
OF HIGHER EDUCATION
AND
TRAINING
FIFTH
RESPONDENT
COUNCIL
ON HIGHER EDUCATION
SIXTH
RESPONDENT
SOUTH
AFRICAN QUALIFICATION
AUTHORITY
SEVENTH
RESPONDENT
UNIVERSITIES
OF SOUTH AFRICA
EIGHTH
RESPONDENT
SENATE
OF THE UNIVERSITY OF
LIMPOPO
NINETH
RESPONDENT
JUDGEMENT
MASHAMBA
AJ
INTRODUCTION
[1]
The
applicant brought an application for review in terms of the Promotion
of Administrative Justice Act
[1]
(hereinafter referred as "PAJA") against the decision made
by the Senate of the University of Limpopo (hereinafter referred
to
as "the ninth respondent or the Senate") in the meeting
held on the 12 November 2021.
[2]
Pursuant to the meeting of the Senate held
on the 12th November 2021, the Senate took a decision not to grant
the applicant any
of the credits for LLB modules on the basis of his
B.Proc modules. The Senate reaffirms that the applicant continues to
have the
rights to pursue his studies towards LLB qualification in
accordance with the legislation, rules and regulations that govern
the
University.
[3]
The applicant's review application seeks
the following declaratory orders:
3.1
That the first respondent's decision not to
grant the applicant any of the credits for LLB modules on the basis
of B.Proc modules
be declared unlawful, invalid and be reviewed and
set aside.
3.2
That it is declared that the first
respondent's General Academic rules have no requirement that 50% of
the credits for the programme
to be conferred should be enrolled at
the University of Limpopo.
3.3
That it is declared that the applicant has
satisfied the requirements for the conferral of the Bachelor of Laws
degree at the University
of Limpopo.
3.4
That any respondent opposing this
application be ordered to pay the costs of this application,
including the costs of two counsel.
3.5
Further and/or alternative relief.
[4]
The review application is opposed by the
first, second, third, fourth and nineth respondent respectively.
[5]
The first, second, third, fourth and nineth
respondents withdrawn their complain against the late filing of the
applicant's supplementary
affidavit and none compliant with Uniform
Rule 53.
[6]
The review application was set down for
hearing on the 13rd September 2024.
BACKGROUND
[7]
In 1993, the applicant registered for the
B.uris degree and later changed to B. Proc degree in 1994 at the then
University of the
North and now the University of Limpopo
(hereinafter referred as "the first respondent or the
University"). On the 03
rd
April 1998 the applicant was conferred the B.Proc degree.
[8]
The applicant held different positions and
gained experience as Trainee Registrar, Labour Relations and Conduct
Officer, Senior
and Chief Registrar of the High Court, Senior Taxing
Master, Director of Content and International Relations in the
Private Office
of the Chief Justice and Constitutional Court, Chief
Information Officer of the Constitutional Court, Pupil Advocate at
Johannesburg
Society of Advocates (Under the General Council of the
Bar of South Africa) and currently employed Legal Advisor to the
Gauteng
MEC of Economic Development, Agriculture and Environment.
[9]
On the 2
nd
September 2014, Adv Ponelis, who was the Dean of the School of Law,
informed the applicant that since 1998 the University required
that
all candidates who sought to upgrade B.Proc and B.juris degrees to
the present LLB degree, pass several additional modules
that had not
been offered as part of the B.Proc and B.Juris programmes.
[10]
On or about February 2019 the applicant
approached the University with an application for accreditation or
exemption of equivalent
modules which the applicant passed during the
B.Proc degree. Adv Rapatsa who was assisted by Ms Hlologelo Kgasago,
informed the
applicant and made him to believe that his B.Proc
modules will be accredited and exempted for LLB modules and that the
applicant
will have to do additional LLB modules in order to satisfy
the requirements to be conferred with an LLB degree.
[11]
On
the 08
th
March 2019 the applicant was registered as a third year LLB student.
The applicant was registered for the following modules: Jurisprudence
A (CJUA041), Tax law, Jurisprudence B (CJUA042), Advance labour law
(CLLA041), International Law (CPUA041), Environmental Law (CPUA042)
and Conflict of laws (CPLA042). The applicant paid the tuition fee in
the amount of R 26 970.00
[2]
.
[12]
On
the 18
th
November 2019 the applicant's application for accreditation or
exemption succeeded and the applicant was required to make payment
in
the amount of R 43 770.00
[3]
. On
the 03 February 2020, the applicant proceeded to make payment in the
amount of R47 770,00 as required by the University in
order to
complete the application for accreditation or exemption of B.Proc
modules to LLB modules
[4]
.
[13]
The applicant indicated that the exemption of 29 B.Proc degree was
successful as appears in the
transcript of academic record signed and
officially stamped by the Registrar of the University (hereinafter
referred as "the
second respondent or the Registrar")
[5]
.The
applicant was accredited 1 (one) module passed at North West
University.
[14]
Before the applicant's application for accreditation, the applicant
had made an application for
Recognition of Prior Learning (RPL) for
three modules. In February 2020, the University then initiated a
Recognition of Prior Learning
process, the applicant was subjected to
a full day consisting of a vigorous unrehearsed interview and written
examination assessment.
On the 19 August 2020, the applicant was
informed by Adv Rapatsa, who was the Acting Director of the School of
Law, that he has
passed the interview for RPL. The applicant was
exempted from the following RPL modules, Practical Legal Course A
(CPRA041), Practical
Legal Course B (CPRA42) and Computer Literacy
(SC0S012).
[15]
According to the Registrar, he became aware of the applicant's
application for accreditation
or exemption of more than 50% of B.Proc
modules to the LLB modules after the submission of RPL result after
the 20
th
August 2020. The applicant was advised to make
another application for exemption with the Senate of the University
of Limpopo (hereinafter
referred as "the ninth respondent or the
Senate"), which he did on the 22July 2021.
[16]
On the 23
rd
July 2021, the Senate in its meeting of the 23
July 2021, the Senate engaged about the applicant's application for
exemption and
accreditation of B.Proc to LLB programmes. The Senate
directed that the Executive Committee of the Senate of the University
of
Limpopo (hereinafter referred as the third respondent or the ECS")
should deal thoroughly with the matter and make a recommendation
on
how the matter should be resolved.
[17]
On the 30
th
September 2021, the ECS held a special meeting where they engaged
about the applicant's issue and made the following observations:
(a)
The applicant was applying for exemption of
29 LLB programme modules in recognition of credits accumulated from
the same number
of modules from his B.Proc degree.
(b)
In the 23 years since the applicant had
graduated, the LLB that replaced B.Proc had gone through numerous
programme reviews and
changes leading to incompatibility of the
modules in the two programme. This renders the direct transfer of
credits impossible
(c)
The requirement that 50% of the credits for
the programme to be conferred should be enrolled for is part of the
University General
Academic Rules and relevant legislative policy
framework, was re-emphasised. The relevant Rule is aimed at ensuring
that the integrity
and credibility of the new programme is protected.
LLB is a new credit that constitute the foundation of the new
programme. Credits
from other programmea are meant to compliment what
is otherwise an already solid foundation for the programme to be
conferred.
Any other deviation threatens the continued accreditation
and credibility of the new programme and qualification.
[18]
The ECS after consideration of the above
observations, made the following recommendations to the Senate;
(a)
The applicant should not be granted any of
the credits for LLB modules on the basis of his B.Proc modules, and
(b)
Reaffirms that the applicant continues to
have the right to pursue his studies towards LLB qualification in
accordance with the
legislation, rules and regulations that govern
the University programme and qualification.
[19]
On or about 12
th
November 2021, the Senate endorsed the ECS recommendations and
decided that the applicant should not be granted any of the LLB
modules on the basis of his B.Proc modules and that the applicant has
a right to pursue his studies towards LLB qualification in
accordance
with legislation, rules and regulations that govern the University
programmes and qualification.
APPLICANT
SUBMISSIONS
[20]
In
his answering affidavit the Registrar stated that it is not the
University's case that it could never have been appropriate to
give
credit in an LLB course for modules done under B.Proc degree. Rather,
the University's position is that it was wrong to do
so after such a
long delay; and to do so in excess of 50 % rule
[6]
.
[21]
The
applicant further submitted that the Senate had legal opinion which
advised them that the Senate is entitled to grant more than
50% of
the qualification credits towards another qualification. The Senate
was advised to consider various factors in deciding
what credits it
is prepared to grant
[7]
.
[22]
Advocate Rapatsa warned the Senate of not
accrediting the applicant any of his B.Proc modules when he stated
that:
"
Of
course as a matter of fact when this matter appeared before the
Honourable Judge Kganyago, the merits of it were not necessarily
dealt with, because it was enrolled on an urgent basis, so the matter
was removed from the roll, based on technicalities.
"But
as a matter of fact, the documentation that I am talking about,
remains part of the records of the court. In other words,
the road
that I see ECS (Executive Council of the Senate) is saying we should
take is now deviating or it is completely different
from the
submissions which were being made when we were interacting with the
attorneys and the attorneys from the opposing side.
And
I want to bring to attention of senators that represent a risk, then
because then should it be that the candidate prefers to
litigate
again, then we would be accused of removing the goalposts and rightly
so, because central to our argument at that time
as yes, we may give
you credit, but we cannot go beyond 5 precent".
[23]
The applicant further submitted that
Advocate Rapatsa gave the Senate solution which would not expose them
to risk of the University
materially contradicting itself and thereby
making an irrational decision to not credit the applicant any of the
courses, by stating
that:
"..
.perhaps
the best approach would be that we should not be retrospective,
rather let us be prospective. If we think that there is
a problem
with a case before us, in attempting to deal with it, let us not go
retrospectively.
Because
if you go retrospectively, then it means that you must go and call
everyone else who went through the program and benefitted
through the
very credit process and that will prove very fatal to both the
university and candidates.
Would
not want the situation where this chap is going to litigate again and
refer to those cases that graduated here and specifically
indicating
how they benefitted through credit processes. In my view, I would
have settled for sticking with the 50 percent and
now generate a new
view which says prospectively, from now on, we are no longer giving
credits which were obtained in either B.Proc
or a.Juris or any other
qualification, for that matter. Because then if you are to take that
position, it is not a position that
must only affect law, it has to
affect all qualification in the university.
"
[24]
The Senate did not take the advices which
was given by Adv Rapatsa when he indicated that the answering
affidavit which was before
this court in an urgent application,
contradicts with the current view or consideration when deciding the
applicant's matter.
[25]
The applicant indicated that Adv Rapatsa
submissions to the Senate is a prove that the allegation that one
student by the name of
Musa Baloyi has graduated in the same
situation as this of the applicant is true. The Registrar in his
answering affidavit, paragraph
209, answered in a way that he did not
know of the RPL application which the applicant was referring to but
the application was
in his possession.
[26]
In
the General Faculty Rule of the school of law, in paragraph 2.2
states that a candidate for degree, diploma and certificate in
a
School in the Faculty must comply with the conditions and meet the
selective criteria as determined by the concerned school
[8]
The school of law are responsible for creating and implementing their
own rules.
[27]
The applicant argued that Rule G8.1.2.2 as
provided in the General Academic Rules of the University of Limpopo
reads:
He/She
has successfully passed approved modules/courses at the University as
follows as follows;
(a)
For any bachelor's degree for which
the prescribed period is four years or more at least the final two
academic years and; and
(b)
For any other bachelor's degree;
at/east two academic years, provided that he/she has been successful
in at least half the total
number of credits prescribed for the
application, including the credits for the final year of the major
subjects, where such majors
are required.
(NOTE:
If a qualification does not comprise major subjects, such subjects
are regarded as major subjects as are designated for the
purposes of
this Rule under Rules of the Faculty concerned).
[28]
The applicant indicated that the 2018
General Rules as referred by the respfondents counsel was not present
during 2019 or he was
not made aware of 50% rule or any policy.
FIRST,
SECOND, THIRD, FOURTH AND NINETH RESPONDENTS' SUBMISSIONS
[29]
The respondents submitted that the
application for exemption was made to the Senate on the 22 July 2021.
The ECS is made up of senior
functionaries (many of whom are senior
professors), executive deans of the four faculties and department
heads. It held a special
meeting on the 30 September 2021, at which
it considered the applicant's application for exemption of B.Proc
modules. It decided,
unanimously to recommend to the Senate that it
should not grant the applicant any credits for LLB degree based on
modules completed
during his B.Proc studies. Its reasons were
recorded as appears in paragraph 17
supra.
[30]
The Senate which comprises of 88 members
and most are senior academic of the University, who have knowledge of
courses curriculum
and quality assurance of qualifications as a
tertiary level. The Senate held a meeting on the 12
th
November 2021 and considered the applicant's application for
accreditation and the third respondent's recommendation. The
respondents
referred the court to General Academic Rule which was
approved by Council on the 20 April 2018 and this rule specifically
at subrule
8.1.2.2 which has established 50% rule.
[31]
The respondents' submitted that court can
not review the Senate's decision but any decision they have made can
be remitted back
to the Senate for reconsideration.
[32]
The respondent further submitted that the
Senate cannot perpetuate the wrong doing or errors. The respondents
referred the court
to the case of
Kuzwayo
v Representative of Executor in the Estate of Late Masilela,
[2011]
2 All SA 599
(SCA), that the court can not consider the error to be
reviewed, because clerical error can be corrected.
[33]
The academic transcript which the applicant
used to proof accreditation was retrieved after the Senate took a
decision to refuse
the applicant's application for exemption of
B.Proc modules.
[34]
The respondents submitted that the Council
of Higher Education's (CHE) 2016 Credit Accumulation and Transfer
(CAT) policy takes
the Higher Education Qualification Sub
Framework (HEQSF). In paragraph 5.2.1 of the policy requires that the
institutions
develop and implement institutional CAT policies. But
paragraph 5.2.5 of the CHE's 2016 CAT policy stipulate the following:
"The
recognition of credits for the purposes of transfer from one
qualification to another is determined by the nature of the
qualifications, the relationship between them, the nature,
complexity, and extent of the curricula associated with the specific
subjects to be recognized for exemption and/or inclusion, and the
nature of the assessment used....at A maximum of 50% of the credits
of a completed qualification may be transferred to another
qualification".
[35]
The respondents further submitted that, if
the University wishes to deviate from CHE's 2016 CAT policy, needs to
request approval
of the High Education Quality Council. The
respondents are of the view that they have no discretion to accredit
B.Proc modules
with the LLB Modules of over 50% and that they can
only do so after the approval and compliance with High Education
Qualification
Sub-Framework and CAT Policy 2016.
THE
LEGAL FRAMEWORK AND COURT'S FINDINGS
[36]
In
terms of The Constitution of the Republic of South Africa
[9]
(hereinafter referred as "the Constitution"), section 2,
provides that this constitution is the supreme law of the republic;
law or conduct inconsistent with it is invalid, and obligation
imposed by it must be fulfilled. The Constitution further in section
33(1), confers everyone right to administrative action that is
lawful, reasonable and procedural fair.
[37]
In terms of section 6(2) (e)(v) of PAJA, a
court or tribunal has the power to judiciary review an administrative
action if the action
was taken in bad faith. Section 6(2(e)(i)
further provides that a court or tribunal has the power to judicially
review an administrative
action if the action itself contravenes the
law. The court finds that the action or conduct by the University
contravenes the law
in different ways, the University did not
consider the impact of their unfair administrative action to the
applicant. The Senate,
ECS and the Registrar, in their consideration,
they valued the integrity of the University and of LLB degree beyond
the integrity
of the applicant and his qualifications. The
Constitution stipulates that everyone is equal before the law and has
rights to equal
protection and benefit of the law. The Senate did not
consider the applicant's constitutional rights when taking their
unfair administrative
decision.
[38]
The University's reasons for his
administrative decision were that in terms of the University General
Rules and other relevant legislative
policies, the application for
accreditation of more than 50 % should not be granted and the
requirement that in order to be conferred
with a new programme it is
the requirement to enroll 50% of the credits for the programme. This
Court find that the policy and
criteria for Credit Accumulation and
Transfer within the National Qualifications Framework, as amended,
2021, as a relevant legislative
policy framework dealing with
transfer of credits. In this case the University did not have a rule,
or internal policy stipulating
the maximum percentage of the credits
that will be recognised and transferred towards a qualification.
THE
HIGHER EDUCATION QUALIFICATIONS SUB-FRAMEWORK- 2013
[39]
In
terms of paragraph
"33.
In terms of Section 13 (h) (ii) of the National Qualification
Framework Act
[10]
,
South African Qualification Authority is responsible for developing
policy and criteria, after consultation with the Quality Councils,
for credit accumulation and transfer. In the interim, a maximum of
50% of the credits of a completed qualification may be transferred
to
another qualification, provided also that no more than 50% of the
credits required for the other qualification are credits that
have
been used for a completed qualification. The purpose of this
provision is to avoid the awarding of multiple qualifications
for the
same work undertaken and to ensure that qualifications with different
purposes are not embedded within each other. As exceptions,
and
subject to limits, credits for a completed qualification may be
recognised by the same or another institution as meeting part
of the
requirements for another qualification."
UNIVERSITY
OF LIMPOPO STATUTE AND RULES
[40]
The institutional Statutes of the
University was published in the Government Gazette in accordance with
the Higher Educational Act
on the 10
th
March
2017. It provides that the Council of the University, in consultation
with Senate, determines admission, registration
and graduation
requirements for all degree, diplomas and certificates. The
University adopted its General Rules under the Institutional
Statutes
of the University. The relevance is in rules 8.1 and 8.2, in part G8
of the rules;
[41]
Rule "8.1 Recognition of modules from
other institution;
8.1.1
Senate may recognise and grant a
student exemption from class attendance, as well as formative and
summative assessment in a module
by virtue of a credit obtained from
another university or accredited institution of higher learning.
8.1.2
Subject to the stipulation under
Rule G8.1.1, Senate may, as far as permissible, accept academic
transcripts and certificate attesting
to conduct issued by such
university and grant credit such modules for degree purposes;
provided further that such a candidate
shall not be admitted to a
qualification by the University unless:
8.1.2.1
His/her total period of attendance
at such a recognised university or other approved institution and at
the University of Limpopo,
together equals at least the full period
prescribed by the university for the qualification. Such attendance
will only be accepted
in respect of recognised modules of the
University, or equivalent modules approved for the purpose by Senate.
8.1.2.2
He/she has successfully passed at
least half the total number of credits prescribed for the
qualification.
[42]
Rule 8.2 Recognition of modules after
obtaining degrees or deploma;
"8.2.1
in the case of a student of the University or another university,
Senate may recognise periods of attendance and assessment
procedures
in a module in one programme for admission to studies in another
programme; provided that the candidate shall have complied
with the
conditions laid down under Rule G8,1,2,2, and in the case of a
graduate of another university, also those under Rule G8.1.2.1
8.2.2
In the case of a graduate of this University or another university,
Senate may accept periods of attendance as well as assessment
in a
core module for a second bachelor's degree; provided that the
candidate has complied with all the conditions laid down under
Rule
G8.1.2.2, and in the case of a graduate of another university or
institution approved for the purpose by Senate, also those
under Rule
G8.1.2.1".
RECOGNITION
OF PRIOR LEARNING, CREDIT ACCUMULATION AND TRANSFER POLICY 2016
[43]
In terms of Paragraph
"2.1.
The purpose of the policies outlined in this document is to provide
guidelines for the higher education sector with regard
to the
development of institutional RPL, CAT and Assessment policies in the
context of the national policies developed by South
African
Qualification Authority and within the framework of the High
Education Qualification Sub Framework.
5.2.
Application of CAT The following policy
statements seek to guide the application of the CAT within higher
education.
5.2.1.
Institutions are required to develop and
implement institutional CAT policies in order to ensure equity and
inclusiveness; and to
actively promote access to learning
opportunities. Institutional CAT policies should be premised on
overcoming possible barriers
of access and promoting success.
5.2.2.
The development of institutional CAT
policies should be based on the principles of access for success,
retention, articulation by
design, comparison based on credible
methods and transparency.
5.2.
6
A maximum of 50% of the credits of a completed qualification may be
transferred to another qualification.
This policy prescript seeks to
protect the integrity of qualifications by ensuring that the
exception does not become the norm."
CREDIT
ACCUMULATION AND TRANSFER POLICY(CAT)- 2021
[44]
In terms of Paragraph 15. Principles for
CAT Policy, requires that Comparison should base on credible methods;
"In
promoting Credit Accumulation and Transfer, qualifications are
compared based on credible methods that determine the extent
to which
their curricular properties, as well as their content and outcomes
match, as guided by the National Qualification Framework
level
descriptors".
[45]
Paragraph 15, further gives obligatory duty
to the institution that has adopted the Policy to be transparent all
time, it states
that;
"Rules,
regulations and any register of precedents which inform, influence or
govern decisions taken in respect to CAT are
valid, fair, reliable
and transparent. They must be publicly available and drawn to the
attention of intending students prior to
enrolment. This should
include clear information about fees for CAT where they are charged."
[46]
The
Constitutional Court in
Democratic
Alliance v President of South Africa and Others
[11]
,
in
dealing with the concept of irrationality and ignoring relevant
factors, held that:
"The
Supreme Court of Appeal held that the President, by not taking into
account the findings of Ginwala Commission, ignored
a relevant
factor. This formulation takes us to the question of whether the
seminal statement in Johannesburg Stock Exchange74
concerning
administrative action in the pre-constitutional era is at all
relevant to the rationality evaluation:
Broadly,
in order to establish review grounds it must be shown that the
president failed to apply his mind to the relevant issues
in
accordance with the 'behest of the statute and tenets of natural
justice' ( see National Transport Commission and Another v
Chetty's
Motor Transport (Pty) Ltd
1972 (3) SA 726
(A) 735 F-G; Johannesburg
Local Road Transportation Board and Others v Davit Morton Transport
(Pty) Ltd
1976 (1) SA 887
(A) at 895B-C; Theron en Andere v Ring van
Wellington van die NG Sendigkerk in Suid Afrika en Andere
1976 (2) SA
1
(A) at 14F-G. Such failure may be shown by proof, inter alia, that
the decision was arrived at arbitrarily or capriciously or mala
fide
or as a result of unwarranted adherence to a fixed principle or in
order to further ulterior or improper purpose; or that
the president
misconceived the nature of discretion conferred upon him and took
into account irrelevant considerations or ignored
relevant ones; or
that the decision of the president was so grossly unreasonable as to
warrant the inference that he had failed
to apply his mind to the
matter in the manner aforesaid,"
[47]
If the Senate should have applied their
mind, considered all relevant factors, statutes and applicable
policies would have realised
that such numerous programme changes
have been tailored to include Recognition of Prior Learning to bridge
the gap between the
B.Proc and LLB modules. The Senate did not use
any method as required by the CAT policies, to measure the
similarities between
the B.Proc and LLB modules. The Senate
concentrated on the period or age of the B.Proc modules and as a
results their administrative
decision was irrational, arbitrary and
capricious. The Senate administrative decision contravenes the law
and reviewable.
[48]
The submission that the decision of the
Senate is not reviewable is not correct, when one considers the case
law referred in paragraph
46, supra, section 2 of the Constitution,
which is the supreme law of the republic, law or conduct inconsistent
with it is invalid,
and the obligations imposed by it must be
fulfilled. In terms of section 33 (1) of the Constitution, confers
everyone with the
right to administrative action that is lawful,
reasonable and procedurally fair. The conduct of the Senate is
inconsistence with
the constitution, the administrative action they
took is unlawful, and unreasonable.
LEGITIMATE
EXPECTATION
[49]
In
the case of Minister of Environmental Affairs and Tourism v Phambili
Fischeries, the Supreme Court of Appeal
[12]
outline the conditions for a legitimate expectation: the
representation must be clear, unambiguous, and without relevant
qualification;
the expectation must be reasonable; the decision maker
must have induced the representation; and the representation must be
within
the decision makers's competence and legality, without which
reliance cannot be considered legitimately.
(a)
The representation must be clear and unambiguous
[50]
The representation in this case was made in
the form or promise or established practice. The applicant
communicated via a letter
with the Dean of the Faculty of Law Adv
Ponelis in September 2014 to be particular, Adv Rapatsa who was
assisted by Ms Hlologelo
Kgasago, the applicant was informed and made
to believe that his B.Proc modules will be accredited and exempted
for LLB modules
and that the applicant will have to do additional LLB
modules in order to satisfied the requirement to be conferred with an
LLB
degree. The applicant engaged with the Officials of the school of
law and
(b)
The Expectation must have been induced by decision maker
[51]
The University is clearly a decision maker
and one who induced the expectation for the following reasons; The
applicant's application
was directed to the University and the letter
dated 7 August was written by the University. The Applicant's
application for RPL
and exemption of B.Proc modules were directed to
the University and the exemption of B.Proc modules were granted by
the University.
In the circumstances the expectation that the LLB
degree will be conferred to the applicant upon completion of modules
registered
in 2019 for LLB degree was induced by the University who
is a decision maker.
(c)
The representation must be competent and
lawful for decision maker to make
[52]
The representation was done in terms of the
lawful procedures of the University under Rule G8 of the University's
General Rules
which provides for recognition and exemption of modules
or courses.
(d)
Expectation must be reasonable
[53]
The expectation was reasonable because the
application for exemption was made to the University through the
School of Law Officials,
who directed the applicant the form he
should complete for exemption of equivalent modules completed under
B.Proc. The process
of RPL was clear the process for completion of
LLB degree as advised in February 2019. On the 7
th
August 2021, the Acting Director, Adv Rapatsa directed a letter to
Prof OS Sibanda (Executive Dean of Faculty of Law) confirming
that
the applicant was successful in his RPL interview.
[54]
In
the matter of
Makwela
v University of Limpopo and Another
[13]
,
the
Honourable Phathudi J reviewed and set aside the University's
decision not to recognise the applicant's courses or modules on
the
basis of inter alia legistimate expectation. In this matter, the
Registrar sought to withdraw a written approval for recognition
of
modules. This case is not different from the current set of facts.
The court would like to emphasise that the Senate impugned
decision
is reviewable, the University has created the applicant legitimate
expectation.
[55]
The University granted approval for 29
B.Proc modules and later took a decision not to credit a single
B.Proc modules. The University
indicated that a person who took a
decision to credit 29 B.Proc modules was not authorised by the
Senate. When an applicant approach
the University did not request any
officials to confirm if they had any authority or not but believed
them as they were working
in their capacity as the employees of the
University.
[56]
The Senate considered wrong factors to
reach their conclusion not to credit any B.Proc module. The evidence
by Adv Rapatsa was precise
when he alluded that such type of
accreditation was done to many students who were in the same position
with that of the applicant
and many graduated. The Respondents
answers were far fetching and clearly untenable by stating that they
have no discretion to
accredit or exempt modules more than 50%. The
way the Senate is not familiar with the CAT policies and how it
should be adopted,
its clear that the University did not adopt CAT
policy. The applicant was taken through the most difficult processes
because the
Senate do not know the procedure to be followed when
dealing with 50% rule in terms of CAT Policy. The court finds that in
2019
the University had not adopted CAT Policy and 50% rule was not
applicable to the Applicant.
[57]
The court noted that in 2019, the applicant
made an application for registration of LLB degree and he was
registered. The applicant
further made a substantive application for
accreditation or exemption of B.Proc modules for the purpose of
completing his registered
LLB degree. The applicant through the
advises from the officials within the Faculty of Management and Law
and Adv Rapatsa, who
was an acting director of school of law in 2019,
made further application for Recognition of Prior Learning (RPL). The
applicant
was expressly advised of the exemptions that will be
granted in terms of the General Rules G8
.
The applicant was further advised of
additional modules he should register according to the applicable LLB
curriculum and syllabus
of 2019 in order to be conferred with an LLB
degree. He was advised to register seven modules which he passed all
of them in 2019.
[58]
The Court further considered that School of
Law identified 29 modules from B.Proc which should be accredited. The
applicant was
further exempted for one LLB module passed from North
West University. The process of RPL was done in February 2020 and the
applicant
had a full day interview to ascertain his experience to
determine if he can be exempted for three (3) modules, namely;
Computer
Literacy, Practice Legal Training A, and Practice Legal
Training B. After six months from the date of the RPL interview, the
acting
director of school of law informed him that he was successful
in the interview, therefore, three RPL modules mentioned above were
also accredited. The applicant had a legitimate expectation to be
conferred with an LLB degree, as he was advised by the University
through the officials within the Faculty of Law.
[59]
The court finds that During the time the
applicant made a re-application for exemption, the dispute was
whether he can be accredited
or exempted for more than 50% of B.Proc
modules to LLB modules. The ECS and Senate, instead of only attending
to make such ruling
in the issue before them, they decided to
re-consider whether the modules of B.Proc are compatible with those
of the LLB modules
and such was already done in the School of law.
The applicant was treated differently with other students who were
also in possession
of B.Proc modules, who were accredited and
exempted without going through this processes. The court is of the
view that the applicant
was treated unequal with other students.
[60]
The court finds that the Senate was wrong
in their the view that due to 2016 CAT policy, they have no
discretion to accredit or
exempt B.Proc modules to LLB Modules. I
would like to indicate that the Senate was ignorant to the fact that
the CAT policy work
as a guideline and is not enforceable unless is
adopted by the University. The CAT policy put an obligation that when
the policy
is adopted the applicant should be made aware if 50% rule
is applicable. The applicant was not made aware of the 50% rules
during
the time he made his application for exemption of B.Proc
modules to LLB modules because such policy or rule was not
implemented
in 2019.
[61]
The court considered the transcribed
records of the Senate during their meeting in September and November
2021, and the submissions
made by Adv Rapatsa who advised the Senate
about the practice of the school of law, when it comes to
accreditation of B.Proc modules.
Adv Rapatsa who was an acting
director of school of law, confirms that many other students who were
in the similar situation with
the applicant were conferred with an
LLB degree. The Court is of the view that the version given by the
applicant in his founding
affidavit and supplementary affidavit is
true, that B.Proc modules were accredited or exempted and that it is
not true that the
University need approval from Higher Education
Council or any other institution in order to exempt more than 50%
modules. The Senate
was wrong and misdirected itself when they
concluded that in order to exempt the applicant B.Proc modules they
need an approval
from other institutions such as Quality Council, and
South African Qualification Authority, therefore, the Senate took an
impugned
decision as a result of an error of law.
[62]
The Court further considered the proof of
registration which indicates that the applicant was regarded as a
third year LLB student
in 2019. The transcript of academic records
further reflects the exempted modules which also confirm the version
of the applicant
that he is exempted for 29 B.Proc modules by the
school of law.
[63]
The
Legal Opinion by Adv Rapatsa further submitted to the Senate on the
12 November 2021, that the 50% rule cannot be applied retrospectively
to the applicant and this is an indication that the version of the
applicant is true that such rule was not implemented in 2019.This
further support the version of the applicant that certain student by
the name of Musa Baloyi, graduated in the same situation as
the one
of the applicant. This court reject the submission of the respondents
that the officials from school of law had no authority
to exempt over
50% of the applicant's B.Proc modules to the LLB degree modules. In
the case of
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[14]
.
"An
applicant who seeks final relief on motion must in the event of
conflict, accept the version set up by his opponent unless
the
latter's allegations are, in the opinion of the court, not such as to
raise a real, genuine or dispute of fact or are so far-fetched
or
clearly untenable that the court is justified in rejecting them
merely on the papers".
[64]
The
Senate did not deal with who took a decision to credit the applicant
and why he was registered as third year LLB student and
this is
because the Senate was also aware that such is a practice in each
school to create their own criteria of rules in their
respective
faculties
[15]
. This court find
the conduct of the Senate very unreasonable and arbitrary and it
should not be condoned during the 1996 constitutional
dispensation.
[65]
The court is of the view that if the 50%
rule was applicable in 2019, it would mean that the applicant was not
made aware of such
rule. The applicant is not in control of how the
University should operate and if the governance of the University
failed such
failure cannot be attributed to the applicant.
[66]
The Senate undermined the applicant's
B.Proc modules to the extent of deciding that the applicant should
restart the LLB degree
from the first year. The Senate's decision of
not accrediting or exempting any of the applicant's B. Proc to LLB
modules to LLB
modules was unreasonable and such decision should be
declared invalid and be set aside.
[67]
The University created a legitimate
expectation to the applicant when they advised that the B.Proc
modules can be credited and that
they accepted the amount of R 43
770.00 as a fee for accreditation of modules. I would like to
emphasise that such fee was never
refunded to the applicant until
this matter was heard and such is a prove that the university
accepted such payment because they
accredited the applicant's B.Proc
modules to LLB Modules as applied at the faculty of law.
[68]
The respondents' submission that the person
who exempted the applicant had no authority is not correct, the
school of law work under
the wing of the university and they have
authority. The decision made by the School of Law, it is the decision
of the University.
The University did not dispute the authenticity of
proof of registration, payment of 43770.00 for exemption of 30 B.Proc
modules
and the transcript that indicates that the applicant indeed
were exempted for 29 B.Proc modules and 1 modules from University of
North West. There is nothing the University produce to prove that the
authority of the school of law officials and the acting director
of
the school of law were acting
ultra
vires,
the applicant is not responsible
for any administrative decision in the Faculty of Management and Law.
COST
[69]
This matter is complex and the applicant
has to use his scarce resources to reach a point where the matter is
heard and finalised
before this court. The court is persuaded to
grant cost in a higher scale, including the cost of two Counsels.
ORDER
[70]
In the circumstances I make the following
orders;
1.
The University of Limpopo's decision not to
grant the applicant any of the credits for LLB modules on the basis
of B.Proc (Baccalaureus
Procrurationis) modules be declared unlawful,
invalid and be reviewed and set aside.
2.
That it is declared that the applicant has
satisfied the requirements for the conferral of the Bachelor of Laws
degree at the University
of Limpopo.
3.
The University of Limpopo must comply with
order number 2, within three (3) months or in the next graduation
ceremony of the Faculty
of Management and Law.
4.
That the first, second, fourth and ninth
respondents, are ordered to pay costs in an attorney and client
scale, including fees of
two Counsel scale C.
E
MASHAMBA
ACTING
JUDGE OF THE HIGH COURT,
POLOKWANE,
LIMPOPO DIVISION
APPEARANCES
FOR
THE APPLICANT:
WR.
MOKHARE SC
E
MASOMBUKA
INSTRUCTED
BY:
KGOMO
ATTORNEYS INC
EMAIL:
obakeng@kgomoattorneys.co.za
reception@tshikovhiattorneys.co.za
FOR
THE RESPONDENTS:
AJ
FREUND SC
JD
WITHAAR
INSTRUCTED
BY:
ANTON
BAKKER INC
EMAIL:
anton@bakkerlaw.co.za;
magdeline@bakkerlaw.co.za
DATE
OF HEARING:
13
September 2024
DATE
OF JUDGEMENT:
27th
September 2024
[1]
3 of 2000
[2]
Bundle A1, page 52
[3]
Bundle A1, page 98
[4]
Bundle A1, page 99-101
[5]
Bundle A1, page 54-56
[6]
Bundle D1, page 97
[7]
Bundle D6, page 687
[8]
Bundle D3, pag 374
[9]
Act 108 of 1996
[10]
Act 67 of 2008
[11]
2013
(l) SA 248 CC at para 38
[12]
(2003)
2 All SA 616 (SCA)
[13]
(4384/2017)
[2018] ZALMPPHC 2
[14]
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) at para 12
[15]
lpid
8