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2024
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[2024] ZALMPPHC 154
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University of Limpopo v Kusainda (Leave to Appeal) (11854/2023) [2024] ZALMPPHC 154 (24 October 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 11854/2023
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED
DATE:
24.10.2024
SIGNATURE:
In
the matter between:
UNIVERSITY
OF LIMPOPO
APPLICANT FOR LEAVE TO APPEAL
-and-
DICKIEL
KUSAINDA
RESPONDENT
In
re:
DICKIEL
KUSAINDA
APPLICANT
-and-
UNIVERSITY
OF LIMPOPO
RESPONDENT
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
BRESLER
AJ:
Introduction:
1]
The Applicant (Respondent in the main application) applies for leave
to appeal to the
Supreme Court of Appeal, alternatively the Full
Court against the judgment and order of this court delivered on the
7
th
of June 2024 in terms whereof the following was ordered:
1.1
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:
1.1.1 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
1.1.2 The
decision to terminate the Applicant's studies and registration with
the Respondent
is hereby reviewed and
set aside.
1.2
It is declared that:
1.2.1 The
Applicant has a right to have his doctoral theses submitted to a
panel of external assessors for their evaluation
thereof; and
1.2.2 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.
1.2.3 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.
1.2.4 The
Respondent's decision to terminate the Applicant's registration as a
student of the Respondent constitutes
an infringement of the
Applicant's rights.
1.3
The Respondent is directed to, within 30 (thirty) days from the date
of judgment, take a
decision on the Applicant's review application.
1.4
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.
1.5
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.
[2]
The Application for leave to appeal is premised on the following
grounds:
2.1
The Court ignored the fact that the Respondent's (Applicant in the
main application) acceptance
for the PhD degree was subject to
on-going and continues evaluation of the application and the
Applicant reserved the right to
review the Respondent's admission in
the event that administrative irregularities were identified post
enrolment;
2.2
The Court misdirected itself when it ignored the fact that the
Respondent's admissions for
a PhD degree was always susceptible to
continuous review;
2.3
The Court erred by finding that the Applicant was, on acceptance of
the Respondent and enrolling
him for a PhD, functus officio.
2.4
The Court furthermore erred by:
2.4.1 Finding
that the Executive Committee of the Senate failed and / or refused to
entertain the Respondent's review;
2.4.2 Finding
that once the Applicant took a decision to consider and accept as
appropriate articulation of the Respondent's
Master's degree, the
decision stood until set aside;
2.4.3 Finding that
the Respondent's acceptance for PhD studies has not been revoked.
2.5
The Court further erred by finding that:
2.5.1 The
Applicant cannot revisit the Respondent's admission in the absence of
a formal self-review when the acceptance
letter, reserved the
Applicant's right to self-review in appropriate circumstances.
2.5.2 A
clerical error pertaining to the Respondent's MSc being in
Development Studies and not in Strategic Management
constituted a
reviewable ground.
2.6
The Court also erred in failing to carefully consider the essential
and or fundamental purpose
of the evaluation of qualifications by the
South African Qualifications Authority, which adjudged the
Respondent's qualifications
to be within the academic stream of
Commerce and not International Relations.
2.8
The Court erred in prudently inspecting the said certification of
evaluation by South African
Qualifications authority whose provisions
directs that the evaluation should be supplemented with a purpose
assessment by the institutions
concerned, accounting for content and
learning outcomes.
2.9
The Court erred in failing to specifically note that having the
Applicant's qualification
certified as Master of Commerce: Strategic
Management; NQF Level 9 means that the Respondent is only allowed to
study towards a
Doctoral Degree in Commerce as the cognate
appropriate qualification in accordance with the admission
requirements.
2.10
The Court erred in finding that the decision of the Applicant to
terminate the Respondent's enrolment was
procedurally unfair as
contemplated in section 3(2)(b) of the
Promotion of Administrative
Justice Act
, Act 3 of 2000 ('PAJA').
2.11
The Court erred in finding that both decisions discussed in the
agenda of the meeting of 5 June 2023 are
administratively unfair and
reviewable.
2.12
The Court erred in finding that the Respondent needs to be enrolled
as a student with the Applicant and that
the declaratory relief was
warranted.
2.13
The Court further erred in finding that the Respondent is liable for
costs of the application on Scale C.
[3]
An application for leave to appeal is governed by section 17(1) of
the
Superior Courts Act
, Act 10 of 2013 which provides:
“
17
Leave
to appeal
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion
that –
(a)(i) the appeal
would have a reasonable prospect of success; or
(ii) there is some
other compelling reason why the appeal should be heard including
conflicting judgments on the matter under consideration,
(b)
the decision sought on appeal does not fall within the ambit of
section 16
(2)
(a), and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the
case, the appeal would lead to a just and prompt
resolution of the real issues between the parties.”
[4]
In
MEC
Health, Eastern Cape v Mkhitha
[1]
the Supreme Court of Appeal said the following (reference to other
authorities omitted):
“
[16] Once again
it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly is
a reasonable
prospect of success.
Section 17(1)(a)
of the
Superior Courts Act 10
of 2013
makes it clear that leave to appeal may only be given where
the judge concerned is of the opinion that the appeal would have a
reasonable prospect of success; or there is some other compelling
reason why it should be heard.
[17] An applicant for
leave to appeal must convince the court on proper grounds that there
is a reasonable prospect or realistic
chance of success on appeal. A
mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There
must be a sound, rational basis to
conclude that there is a reasonable prospect of success on appeal.”
[5]
Having regard to the Application for Leave to Appeal and the oral
arguments submitted
by the Applicant, it is clear that the Applicant
requires leave to appeal only on the premise that there is a
reasonable prospect
of success on appeal, alternatively that there is
a compelling reason to hear the appeal.
Application
of law to the facts:
[6]
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.
[7]
PAJA was promulgated to give effect to this constitutional right.
[8]
The Applicant persistently in its Application for Leave to appeal
raised the issue
that the Applicant had a right to self-review
contained in its Acceptance letter. The said Acceptance letter
[2]
however states inter alia the following:
'The University of
Limpopo reserves the right to review the status of an applicant where
an applicant did not indicate one or more
of the following:
a.
Details of previous studies undertaken prior to the application.
b.
The correct matric type at the time of application.
c.
Any other relevant and correct information and documentation that
could have
affected the decision process in respect of the
application.'
[9]
It is evident that the right to review is subject thereto that the
student failed
to disclose relevant information. Nothing therefore
turns on this
proviso
as it is common cause between the
parties that the Respondent made a full disclosure.
[10]
This specific term was in any event not raised in the Answering
affidavit. The Applicant relied
on the right to review the status of
a student where the University establishes that there is an
'administrative oversight'.
In such an instance the Applicant
will
rectify
the error and
communicate the change
to
the student within a reasonable time. This does not presuppose that
the Applicant may unilaterally terminate a student's studies.
[11]
It also stands to be noted that the Notice of Termination
[3]
does not refer to the alleged right of the Applicant to summarily
terminate studies. It does make reference to Rule G2.1 that refers
to
'general admission requirements' ... 'approved by Council'. In this
Court's view the Termination letter does not substantiate
the grounds
for termination raised in the Answering affidavit.
[12]
Much has also been stated about the integrity of the University that
should prevail. In the Applicant's
view, this constitutes a
compelling reason why the appeal should be heard. This court does not
agree with the submission. The court
order does not constitute a
directive that the degree should be bestowed on the Respondent. The
order merely ruled the procedure
unfair, unreasonable and therefore
reviewable.
[13]
The procedural unfairness and unreasonableness were manifest and
succinctly addressed in the
judgment in as far as:
13.1
The Respondent was merely informed that his studies were terminated
without being afforded an opportunity
to address the Applicant.
13.2
The failure to consider the decisions at the appeal meeting held on
the 5
th
of June 2023 is tantamount to a failure to take a
decision and infringes the Applicant's right to fair administrative
action that
is lawful, reasonable and procedurally fair.
[14]
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.
[4]
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.
[15]
The declaratory relief was thus warranted under the prevailing
circumstances.
[16]
The Applicant during argument and with reference to its Heads of
Argument also raised the issue
that the Court misdirected itself on
the character of the decisions. According to the Applicant, the said
decisions do not constitute
administrative action but is rather
contractual in nature in as far as the relationship between the
Applicant and the Respondent
must be defined as a contractual one.
[17]
These submissions are without merit. The Applicant has not raised the
objection in its Answering
affidavit nor was it raised in its
Application for Leave to Appeal.
[18]
It was also recently reiterated by the Supreme Court of Appeal in the
case of
Mohuba
v University of Limpopo
[5]
that the relationship
between a student and a university is not straightforward. It
contains elements of both contract law and administrative
law. The
Applicant should be aware of the decision having regard to its
involvement therein. This Court views the Applicant's conduct
as
highly opportunistic and reprehensible. The principle of stare
decisis or the doctrine of precedent is after all well established
in
our law. At the very least, Counsel should have informed the Court of
this decision prior to taking the opposing view.
[19]
As to costs, it is trite law that the Court has a discretion to award
a cost order that is justified
having regard to the importance, value
and complexity of the case.
[6]
This was considered when costs to counsel was awarded on Scale C.
[7]
[20]
In this Court's view, the Appeal therefore does not have a reasonable
prospect of success and
the Application for leave to appeal should
therefore be refused.
Costs:
[21]
There is no reason why the cost order should not follow the outcome
of these proceedings. Likewise,
having considered the nature of the
proceedings, the complexity thereof, the volume of the record and the
importance thereof to
the parties, costs to counsel are warranted on
Scale C and in respect of two counsels, where so employed.
Order:
[22]
In the result the following order is made:
22.1
Leave to Appeal is refused with costs 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 APPLICANTS
:
Adv M
Majozi
INSTRUCTED
BY
: Dikgati
Mphahlele Attorneys Inc
admin@dmainc.co.za
FOR
THE RESPONDENT
:
Adv M
Antrobus SC
Adv I Nongogo
INSTRUCTED
BY
: Webber
Wentzel
Odette.geldenhuys@webberwentzel.com
Nkosinathi.thema@webberwentzel.com
Jos.venter@webberwentzel.com
DATE
OF HEARING
: 27
September 2024
DATE
OF JUDGMENT
:
24
October 2024
[1]
MEC
Health, Eastern Cape v Mkhitha
(1221/15)
[2016] ZASCA 176
(25 November 2016)
[2]
Contained on page 51 of Bundle 1 (Annexure DK 1)
[3]
Annexure 'DK 21' on page 121 of Bundle 2
[4]
Section 8(2) of PAJA
[5]
See
Mohuba
v University of Limpopo
2023
JDR 4060 (SCA)
[6]
See
Mashavha
v Enaex Africa (Pty) Ltd and others
2024
JDR 1686 (GJ)
[7]
Paragraphs [51] to [55] of the judgment.