About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2024
>>
[2024] ZAECELLC 43
|
|
Mlahlwa v Life Healthcare East London Learning Centre (EL1908/2024) [2024] ZAECELLC 43 (12 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION – EAST LONDON CIRCUIT COURT
Case
No: EL1908/2024
In
the matter between:
OLWETHU
MLAHLWA
Applicant
and
LIFE
HEALTHCARE EAST LONDON LEARNING CENTRE
Respondent
JUDGMENT
B
B Brody
[1]
This matter proceeded as an urgent application on the 1
st
of August 2024.
[2]
After perusing the certificate of urgency I ordered that the papers
in the matter
be served by the 19
th
of October 2024, and
with further structured time periods, so that the matter could be
called at the end of the opposed roll in
this court on Thursday, the
24
th
of October 2024. I was satisfied, in considering the
certificate of urgency, that the matter was sufficiently urgent in
terms of
the rules of court, to be considered by this court as an
urgent matter in terms of rule 6(12) of the uniform rules of court.
[3]
The applicant was about to write examinations and the failure to give
a ruling in
the matter prior to those examinations may well have
compromised her irretrievably for this academic year.
[4]
The applicant is a 37-year-old trainee nurse and she explained in her
founding affidavit
that on Friday, the 18
th
of October
2024 Ms Pillay removed her name from the group of students enrolled
by the respondent, and in her view, this resulted
in an expulsion
which would compromise her examination, (which was to take place on
28 October 2024).
[5]
After service upon the respondent, an answering affidavit was served
and filed and
Ms Thriscilla Pillay (“Ms Pillay”), the
Regional Education Manager for the respondent, indicated that the
parties had
in fact entered into a formal written settlement
agreement on 16 October 2024, finally compromising the dispute
between the parties.
A copy of the duly signed settlement agreement
by both the applicant and representatives of the respondent, was
attached to Ms
Pillay’s answering affidavit.
[6]
No mention had been made by the applicant in her founding affidavit,
or the initial
letter of demand by her legal representatives, of this
settlement agreement, that was signed by her.
[7]
What is clear from the answering affidavit and the settlement
agreement is that, the
applicant’s enrolment for a three-year
diploma in nursing was erroneous as the applicant did not have the
minimum requirements
to be admitted for the diploma in terms of duly
promulgated regulations of the South African Nursing Council (“the
Nursing
Council”). Ms Pillay in fact, emphasised the following:
“
As will become
clear, even if the respondent would accede to the relief claimed by
the applicant it would be an exercise in futility
as she will never
be able to qualify, register and lawfully practice as a nursing
practitioner under the auspices of SANC.”
[8]
Ms Pillay explained that it transpired, after the applicant’s
enrolment, that
the applicant had written her matric exams on two
occasions, namely in 2006 and again in 2019, but had failed her exams
on both
occasions. This was common cause in the matter.
[9]
What was also common cause in the matter was that a matriculation
examination was
a prerequisite for enrolment for the relevant
diploma. A perusal of the deed of settlement also indicates that a
dispute resolution
is built into the agreement which makes provision
for the matter being arbitrated in East London in respect of any
dispute.
[10]
Ms Pillay also attached a copy of an offer made to the applicant,
through her attorney of record,
when it was clear that the applicant
intended to litigate about the dispute. The relevant portion of the
offer reads as follows:
“
In as far as there
may be uncertainty and in an attempt to remove any doubt, we confirm
that:
9.1
Our client waves its right to repayment of the tuition fees as
contained in the Employee
Student Funding Acknowledgement of Debt
(annexure “A” to the addendum agreement), for the studies
undertaken by your
client since January 2024 to date hereof.
9.2
Your client upon completion of her National Senior Certificate, will
be re-enrolled at the
East London Learning Centre.
9.3
Our client tenders all reasonable travelling and accommodation
expenses incurred as a result
of your client attending the Learning
Centre, upon presentation and proof of such actual incurred expenses.
9.4
As a further gesture of goodwill, our client will reimburse your
client for her purchases
of textbooks, by purchasing the textbooks
previously bought by your client from her at the actual cost incurred
by her for the
said textbooks.”
[11]
In the applicant’s replying affidavit she did not dispute that
she had signed the deed
of settlement, however, stated the following:
“
8.5
The settlement agreement which respondent alleges I signed on 16
October 2024 was never given to me
so that I can have it. I have
stated clearly that the deponent caused me to sign documents which I
have no knowledge of.”
[12]
What is immediately clearly from this response is that the applicant
was not relying on any defence
of “duress” or an ulterior
motive.
[13]
Mr Quluba appeared on behalf of the applicant, when the matter was
called, and Mr Bezuidenhout
appeared on behalf of the respondent.
[14]
Mr Quluba handed in a judgment by my brother Smith in the matter of
Philasanda Gungqa and others
vs Lilitha College of Nursing and
others, which is a judgment of this court handed down on the 9
th
of July 2019.
[15]
Mr Quluba argued that this judgment was “on all fours”
with the present matter and
that unless this court came to the
conclusion that the judgment was wrong, it was of persuasive
authority in the urgent application.
[16]
Mr Quluba also argued that it was in fact the respondent that had
admitted the applicant for
the diploma and could not now resile from
their decision to allow her to be educated without following due
procedure and that the
respondent was not a “spokesperson”
for the Nursing Council.
[17]
Mr Bezuidenhout argued that the application was fatally defective and
principally as a result
of the fact that section 32 of the Nursing
Act, where the Nursing Council was an organ of state, required the
senior certificate
as a minimum requirement for the diploma, and as a
matter of law, this could not be deviated from.
[18]
He further argued that the respondent fully accepted that it had made
a mistake by enrolling
the applicant for the diploma in circumstances
where she did not qualify to do so.
[19]
Mr Bezuidenhout also argued that my brother Smith’s judgment
was entirely distinguishable
from the present dispute as the
respondent was not an organ of state, the application brought by the
applicant was not a PAJA review
and there was no doubt that the
decision taken by the respondent was not in terms of an empowering
provision. These were private
parties whereas in the Smith J judgment
much of that judgment had to do with the powers of the respondent in
taking the decision,
which was taken, and the issue of legality.
[20]
Mr Bezuidenhout also argued that the respondent had admitted its
error, called a meeting with
HR representatives, and that the deed of
settlement was concluded under normal circumstances, and was binding
between the parties.
[21]
In answering questions put to Mr Bezuidenhout, by this court, he
confirmed that the procedure
followed by the respondent was initially
a WhatsApp invitation to attend a meeting, a day to consider the
issue at hand, and then
a meeting where everything was explained to
the applicant. He also confirmed that the applicant was a 37-year old
female and not
a young student.
[22]
His further argument was that the offer made by the respondent to the
applicant to prevent the
urgent application was fair and reasonable
and went beyond even the terms of the deed of settlement.
[23]
His final argument was that there was non-joinder in that the Nursing
Council had not been cited
as a party to the proceedings.
[24]
Mr Quluba argued, in reply, that the Smith J judgment was indeed
authority for the present dispute
and that the issue of a public body
had nothing to do with the
ratio
of his judgment.
[25]
According to Mr Quluba the applicant was entitled to an enforcement
of the contract of enrolment,
as a matter of contract law, and that
the settlement agreement did not, in any event, substitute the
original agreement.
[26]
Mr Quluba also argued that the respondent was not relying on
administrative law, that procedure
was not followed in concluding the
deed of settlement, and that the application should be granted with
costs on the scale as between
attorney and client. He did, however,
argue that if costs were awarded against the applicant, that these
costs should be on scale
B.
[27]
Given the urgency of the matter I reserved the issue of the order
until the next day, being the
25
th
of October 2024, and on
that date handed down an order in which I dismissed the application,
and indicated that the issue of costs
be reserved and that the
reasons for the order would follow thereafter.
[28]
I am in agreement with Mr Bezuidenhout that the Philasanda Gungqa vs
Lilitha College of Nursing
matter is indeed distinguishable from the
present dispute that judgment essentially dealt with the competency
of the respondent,
as an organ of state, to make the decision which
it did at the time. This is made clear at paragraph 14 of the
judgment where my
brother Smith states the following:
“
The
only issue which accordingly falls for decision is whether the
College had implied authority to cancel an erroneous registration.”
[29]
At paragraph 20 Smith J stated the following:
“
[20]
Having regard to the language of the Eastern Cape Act, it is manifest
that the intention was to circumscribe
the College Council’s
discretion regarding admission of students. The admission criteria
painstakingly prescribed, albeit
that sub-section 8(d) vests in the
College Council the power to refuse “any application for
admission to the College”
despite the fact that the admission
requirements had been met.”
[30]
There can be no doubt that the ratio of the judgment had to do with
the empowering provisions
of the respondent, as an organ of state,
and not as two private bodies.
[31]
A further important distinguishing factor in the present dispute is
that the parties had concluded
a binding and enforceable deed of
settlement which made it clear that the applicant’s enrolment
had been terminated, by agreement.
[32]
Smith J indicated at paragraph 28 the following:
“
[28]
Having said this, it is important to state that, as a matter of fact,
the applicants do not qualify for admission
to the course, and may
still be confronted with the decision by the College Council not to
award their diploma in due course. The
College cannot be criticised
with the stance that it has taken and must rather be commended for
their commitment to ensure strict
compliance with its admission
policy. I am accordingly at pains to state that my judgment should
not be interpreted as compelling
the College to allow the applicants
to complete the course despite the fact that they have not met the
prescribed admission criteria.”
[33]
This statement by Smith J removes any possible interpretation that
the judgment is authority
to prevent the cancellation of an admission
where the minimum prerequisite requirements are not met by a student.
[34]
Smith J also indicated the following at paragraph 25 of his judgment:
“
One can only hope
that the parties will seriously attempt to find such a mutually
acceptable resolution to the impasse.”
[35]
I am of the view that the offer made by the respondent, as set out
above, to avoid the litigation
was fair and reasonable and went
beyond that which could be considered enforceable damages by the
applicant, (conceivably).
[36]
I am of the view that the settlement agreement reached between the
applicant and the respondent
is enforceable, that the respondent has
the authority to terminate the admission, (for want of the minimum
prerequisite requirements
for admission to the diploma), and that the
offer made by the respondent to the applicant was fair and reasonable
in the circumstances.
That offer clearly is not an amendment of the
settlement agreement, however, was made to prevent the unnecessary
incurring of exorbitant
legal costs.
[37]
In the result, the following order issues:
[37.1] The
dismissal of the application is confirmed.
[37.2] The
applicant is to pay the respondent’s costs on scale B as
contemplated by rule 69(7).
B
B BRODY
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
For
the APPLICANT
:
MR
QULUBA
Instructed
by
:
W.
Quluba Attorneys
28 Sprigg Street
Dctor Mbambisa’s
Medical Centre
MTHATHA
CELL: 071 944
8454
EMAIL:
quluba2016@gmail.com
c/o SOMEHLA ATTORNEYS
Chess Galleria
Office No.21C
20 Deveraux Avenue,
Vincent
EAST LONDON
For
the RESPONDENT :
ADV BEZUIDENHOUT
Instructed
by
:
Whalley
& Van Der Lith Inc.
1
st
Floor, Cornerstone House
Stonemill Office Park
300 Acadia Road
Darrenwood, Randburg
TEL: 011 880 3473
REF: Roland
Bottin/nh/LIF2/249
EMAIL:
roland@wvl.co.za
c/o Smith Tabata Inc.
Smith Tabata Building
12 St. Helena Street
Beacon Bay
EAST LONDON
Matter
heard on
:
24
October 2024
Order
granted on
:
25
October 2024
Judgment
delivered on :
12 November 2024