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2024
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[2024] ZAECMHC 76
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Manjiya v Walter Sisulu University and Another (1409/2024) [2024] ZAECMHC 76 (3 September 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION,
MTHATHA)
CASE NO: 1409 / 2024
In the matter between :
MANDLENKOSI
MANJIYA
Applicant
And
WALTER SISULU
UNIVERSITY
1st Respondent
MINISTER OF HIGHER
EDUCATION, SCIENCE
AND
ENNOVATION
2nd Respondent
JUDGMENT
KUNJU AJ
A.
Introduction
[1]
This application is divided into two
compartments. The first compartment seeks for an interim interdict.
The second compartment
is a review. The two compartments are referred
to in the notice of motion as part “A” and part “B”.
[2]
The part that is currently before me is
part “A”. Part “A” is an interim interdict
brought on urgent basis
pending the final determination of part “B”.
[3]
In his notice of motion the applicant
applies for the following order :
[3.1] That the
applicant’s non – compliance with the rules relating to
forms, service and time limits be and is hereby
condoned and the
applicant be and is hereby granted leave to bring this application as
the matter of urgency in terms of rule 6
(12) of the Uniform Rules of
Court;
[3.2] The applicant be
and is hereby condoned for the non – compliance with the
required 72 hour notice prescribed in terms
of Section 35 of the
General Law Amendment Act 62 of1955;
[3.3] Pending Part B of
this application, the first respondent be and is hereby order
to
open is registration system to allow
the applicant to register
for his Diploma in Analytic Chemistry for the academic year of 2024,
up until the year he complete the said Diploma, forthwith
;
[3.4] Pending Part B of
this application, the first respondent be and is hereby order to do
everything necessary and possible to
put the applicant at the same
level and situation in terms of academic progress for the academic
year 2024 like any other students
who have registered
at the
beginning of the registration for the academic year 2024 by allowing
the applicant to recover in relation to everything already
done
academically
as follows:
[3.4.1] To have extra
learning hours for studies already done for the academic year 2024;
[3.4.2] To submit of any
work or assignments already done for the academic year 2024;
[3.4.3] To have adequate
and reasonable time
to prepare to write tests and any other
assessments already done for the academic year 2024
.
[3.4.4] To write
supplementary exams in respect of any module he may fail during the
academic year 2024, regardless of whether or
not he meets the
percentage for supplementary exams.
[3.5] Pending Part B of
this application, Part A of this application is of immediate effect
as an interim relief/ order.
[3.6] Part B of this
application is postponed to the 9th of April 2024.
[4]
The application is opposed by the
respondent.
[5]
Part A was argued before me on 21 May 2024.
Given the nature of the relief sought, the applicant is required to
satisfy the interim
interdicts requirements before an order is issued
in his favour.
(B)
The
parties
[6]
The applicant is a major male person
previously registered with the Walter Sisulu University. He resides
at Lepota Village in Sterkspruit.
[7]
The first respondent is Walter Sisulu
University, a University established through its statute published in
the Government Gazzette
Notice No. 37325 dated 17 January 2014 as
envisaged in Section 33 of the Higher Education Act No. 101 of 1997.
This respondent
has its offices situated at Nelson Mandela Drive,
Mthatha.
[8]
The Second respondent is the Minister of
Higher Education, Science and Ennovation. He is the Political head
and is accountable to
parliament for activities and functions of his
department. The first respondent falls under his auspices and
control. The principal
offices of the second respondent are in
Pretoria.
C.
The background facts
[9]
The applicant registered as a student with
first respondent during year 2020. He registered for a diploma in
Analytical Chemistry
under the faculty of Natural Sciences.
[10]
During year 2022 the applicant did not do
well academically with the result that he was excluded. The exclusion
was subsequently
uplifted consequent upon the decision of the senate
.
Due to covid related considerations
– it was decided by the senate of the first respondent that all
students who were excluded
on academic grounds during Covid 19 period
their exclusion was uplifted. It is why he registered for the
academic year 2023.
[11]
During December 2023 he was advised by
Secretary within his faculty that he had been excluded on academic
grounds. The Secretary
Ms Sipokazi Pikinini also furnished the
applicant with appeal documents in case she wanted to appeal the
decision.
[12]
In or around 8 January 2024 he submitted
his appeal against his exclusion from registering for the diploma
during the academic year
2024. He stated the reason for his poor
performance as stemming from the ill – health and ultimate
death of his father on
01 August 2022.
[13]
Between the period 29 February 2024 and 1
March 2024 the applicant received the outcome of his appeal which was
in the negative.
He then decided to approach his attorneys. The
attorneys had sent a letter of demand on 12 March 2024 and 19 March
2024 respectively.
The letter appears as annexure
FA
– 8
. On 12 March 2024 it was sent
electronically whereas on 19 March 2024 it was delivered by hand.
[14]
The letter demanded that the exclusion be
reversed so that the applicant’s registration for academic year
2024 is processed
and activated. The letter further demanded for a
response not later than 22 March 2024 at 11h00, failing which the
applicant threatened
that a Court of law was to be approached on
urgent basis.
[15]
It does not appear that there was any
response to the above letter of demand. As a result, the applicant
approached this Court on
28 March 2024 on urgent basis and not on 22
March 2024 as threatened.
[16]
It being an urgent application, I need to
first deal with the issue of urgency that is contentious between the
parties.
(D)
Urgency
[17]
There are disturbing delays in the manner
in which the applicant handled the application after it was issued on
28 March 2024. In
fitting cases my attitude is always that if a
fundamental right enshrined in the constitution is either disturbed
or threatened,
I am prepared to relax the rules and in turn allow a
matter to be ventilated. I observe that a right to education in this
matter
is at the centre of this litigation. However, this is not a
case where I am disposed to apply my discretion in favour of the
applicant.
I have taken into account the entire set of circumstances
of this matter. In particular, the wide ranging relief sought.
[18]
Prayers 3 and 4 of the notice of motion
give a hint that at the stage when the application was brought
substantial progress in the
academic syllabus for year 2024 had taken
place.
[19]
That point taken into consideration, it
would appear that by the time the matter was heard i.e 21 May 2024, a
substantial redress
in the future was a strong possibility and a
practical way of dealing with the situation of this matter. I expand
below.
[20]
If at that late stage of the year the
applicant had not registered, I do not see any inhibiting factor why
the applicant did not
proceed with review proceedings with a view to
secure an order directing the respondent to register him during 2025
academic year.
The notice of motion signals a lot of progress after
registration in respect for 2024 academic year was closed.
[21]
The failure by the applicant to give
consideration to the above in my view does not help him satisfy the
Court that if the order
is not granted there will be absence of
substantial redress at a hearing in due course. The applicant has
missed the boat, in the
sense that the period of registration for
academic year 2024 was completed in February and it is why the
applicant demands that
this Court prescribes a University timetable
specifically for the applicant in respect of academic year 2024. That
cannot be an
easy decision in the absence of fundamental
transgression of applicant’s fundamental rights.
[22]
Given the stage at which the application
was heard, the nature of the relief sought and the failure by the
applicant to satisfy
the Court why he cannot obtain substantive
redress at a hearing in due course, I do not see the applicant
passing the jurisdictional
requirements set – out under rule
6(12) of the uniform rules of Court. In deciding whether an applicant
will be able to obtain
redress at a hearing in due course, the delay
between the hearing before an urgent Court and a Court in the
ordinary court is a
weighty consideration.
[23]
I am not satisfied that both the
requirement of absence of substantial redress in due course and the
reasonableness of the abridgment
of time periods have been properly
traversed and motivated by the applicant.
[24]
Whether an applicant will not be able to
obtain substantial redress in an application in due course is fact
bound. It is why I find
that as at 21 May 2024 applicant had lost a
lot already during the academic year 2024. What was available at that
stage was to
challenge his exclusion so that if he succeeds he could
be then be readmitted during year 2025 academic year. Such outcome
would
have been achieved if the review was to be heard later this
year. All this can be observed by looking at the applicants notice of
motion.
[25]
Apart from the hint reflected in the notice
of motion, it is not clear from the founding affidavit:
(a)
if at the time the application was heard
the registration had not closed;
(b)
the extent to which the syllabus had
progressed either at the time of the drafting of the papers or
hearing of the matter.
[26]
One is able to glean from paragraph 41.4 of
the founding affidavit that this course is semesterised. This would
mean therefore that
this course was left with one month for the first
semester to end at the time the application was argued before me. In
that paragraph
applicant contends that the matter is urgent and he
does not want to find himself in a situation where :
“
[
41.4]
Exams for the first semester have already been written
”.
[27]
Despite my conviction stated in paragraph
17 above, I am totally not persuaded that this is a matter that
warrants relaxation of
the provisions of rule 6 (12).
[28]
Even if I were to consider relaxing the
rule, there are other obstacles in the way of the applicant. Such
obstacles are located
in the province of the law of interdict.
E.
Requirements for an interim
interdict
[29]
The applicant seeks for an interim
interdict. For him to secure such a relief he must satisfy the
following test :
(a)
prime facie right even if it is open some
doubt;
(b)
a reasonable apprehension of irreparable
and imminent harm to the right if an interdict is not granted;
(c)
the balance of convenience must favour the
grant of the interdict; and
(d)
The applicant must have no other remedy
(
National Treasury and Others v
Opposition to Urban Tolling Alliance and Others
2012 (6) SA 223
–
PARA 41
).
[30]
I am careful in how I deal with an
interdict pending a review because in the OUTA judgment above,
Moseneke DCJ
reminds
us that a Court must be astute not to stop dead the exercise of
executive or legislative power before the exercise has been
finally
impugned on review. As said part B (is a pending review).
[31]
It would appear on the authority of OUTA
also that temporary restrain against the exercise of statutory power
well ahead of the
final adjudication of applicant’s case may be
granted only in
the clearest of cases
and after a careful consideration of
separation of powers.
[32]
I do not believe that I can characterise
this case as the clearest of cases.
[33]
Given the attitude I take of the matter, I
intend to deal only with one requirement out the four requirements
set out above. It
is to that now I turn.
(i)
The balance of convenience
[34]
The Court must be satisfied that balance of
convenience favours the granting of an interim relief. This appears
to be a balancing
act between the prejudiced to be suffered by the
applicant if relief is not granted and the prejudice to be suffered
by the respondent
if the relief is granted.
[35]
The prejudice to be suffered by the
respondent if the relief sought in paragraph four (4) of the notice
of motion were to be granted
is evident. One cannot imagine the
administrative changes that a University such as respondent would
endure if it were to be directed
by way of a Court to formulate a
program designed for one student. I cannot ignore that the course is
semesterised. This means
in each semester different courses are
registered. The full effect of this application is that the
University shall have to design
a special program only for the
applicant until he completes his degree. It also suggest that all the
laws and regulations of the
University must be relaxed in order to
allow the applicant to complete his degree. In short, the
administrative effects are ghastly
to contemplate.
[36]
The interim relief will definitely bring
about immense inconvenience to the respondent. The semester had
reached an end or was nearing
an end at the time the application was
heard. If the order is granted, it would mean a first semester is
created during the second
semester for one student. I do not believe
that situation favours the balance of convenience.
[37]
As said above, the applicant delayed the
hearing of the application to his prejudice because at the time the
applicant was heard
it was already late in the academic year for year
2024.
[38]
By way of illustration and a matter that I
also considered under urgency above, the Court had issued a directive
on 28 March 2024
for the service of the papers and hearing of the
matter on 2 April 2024. It would appear from the returns filed that
the application
papers in respect of both respondents were only
served on 02 April 2024 at 16h27 and 16h57 respectively – very
late in the
afternoon of the date on which the matter was directed to
be heard by a Judge. Such conduct does not exhibit any sense that the
matter was considered urgent by the applicant. The applicant failed
to manage his application so that it does not lose urgency.
The
urgency got lost in the process.
[39]
In a directive dated 2 April 2024,
Justice
Rusi
noted in paragraph 3 that despite
the existence of a directive issued on 28 March 2024 for the
enrolment and hearing of this application
:
(a)
It was not enrolled on 2 April 2024, and
(b)
that the papers were only served on 2 April
2024 at 16h27 and 16h57 respectively.
[40]
On 02 April 2024 the matter was postponed
to 9th April 2024.
[41]
What compounds the problems for the
applicant is that it is not clear what happened to the matter on 9
April 2024. The application
was enrolled for 10 April 2024 and on
this date parties had put each other on terms for the filing of
further affidavits. Worse,
the application was postponed to a date to
be arranged with the Registrar. The postponement of an urgent
application like this
one in that manner compromised any urgency that
could have existed at some point.
[42]
For all the above reasons, I do not believe
that the applicant is entitled to an interim relief (part A).
[43]
I have considered the question of costs in
relation to the hearing of the interim relief. I have taken into
account that the applicant
is a student or an unemployed individual
and is genuinely fighting for access to education. He wants to go
back to class. I feel
pitty for him. What he seeks though is too much
for the respondents to bear.
[44]
I have observed that for the delays which
resulted in the application not being heard on 10 April 2024, the
first respondent had
contributed. The first respondent also brought a
condonation application. It sought condonation for late delivery of
their heads
of argument. All circumstances considered, I do not
believe that I should issue a cost order against a student.
[45]
The following order shall issue :
[45.1] The interim order
sought in part “
A
” of the notice of motion is
dismissed.
[45.2] each party shall
pay its own costs.
V.
KUNJU
ACTING JUDGE OF THE HIGH
COURT
For
the Applicant:
Mr
C. Nonkolela
Instructed
by:
Mandla
Attorneys
Attorneys
for the Applicant
No.
26 St Georges Street
East
London
C/o:
Falithenjwa
Attorneys
11
Nelson Mandela Road
Mthatha
For
the Respondent:
Mr
J. Hobbs
Instructed
by:
Drake
Flemmer & Orsmond (EL) Inc.
TH
Madala Chambers
14
Durham Street
Mthatha
Heard
:
21 May 2024
Delivered
:
3 September 2024