About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2025
>>
[2025] ZALMPPHC 54
|
|
Cele v University of Limpopo and Others (7523/2023) [2025] ZALMPPHC 54 (25 March 2025)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NUMBER:
7523/2023
In the matter between:
CELE PHILISIWE
HAPPY
IDENTITY NUMBER:
9[…]
APPLICANT
-and-
THE UNIVERSITY OF
LIMPOPO
1
ST
RESPONDENT
THE DEPARTMENT OF
HIGHER EDUCATION AND TRAINING
2
ND
RESPONDENT
COUNCIL FOR HIGHER
EDUCATION
3
RD
RESPONDENT
SOUTH AFRICAN
QUALIFICATION AUTHORITY
4
TH
RESPONDENT
STUDENT
REPRESENTATIVE COUNCIL
UNIVERSITY OF
LIMPOPO
5
TH
RESPONDENT
ECONOMIC FREEDOM
FIGHTERS’ STUDENT COMMAND UNIVERSITY OF LIMPOPO BRANCH
6
TH
RESPONDENT
SOUTH AFRICAN
STUDENT CONGRESS
UNIVERSITY OF
LIMPOPO
7
TH
RESPONDENT
STUDENT UNION FOR
CHRISTIAN ACTION
UNIVERSITY OF
LIMPOPO BRANCH
8
TH
RESPONDENT
Delivered
25
March 2025
This
judgment was handed down electronically by
circulation to the parties’ legal representatives by
e-mail. The date
and time for hand down of the judgment is
deemed to be
25 March 2025
at
10:00 am
.
Date
heard
6
November 2024
Coram
Bresier
AJ
JUDGMENT
BRESLER AJ:
Introduction:
[1]
The Applicant applies in terms
of the provisions of
Uniform Rules
53 and 6 for the judicial review and setting aside of the decision
taken by the First Respondent on the 30
th
of May 2023 in
terms whereof the Applicant’s registration and the conferral of
Master’s degree on the Applicant, was
denied.
[2]
The Applicant furthermore applies
for an order in terms whereof the
First Respondent is directed to confer the appropriate Master’s
degree in Information Studies
on the Applicant within 10 (ten) days
from the date of granting of the order.
[3]
The Applicant submits that the
review is premised on the principles
of irrationality and misdirection. The First Respondent opposes
the relief prayed for.
Factual synopsis:
[4]
The facts relevant to the determination
of these proceedings, are
fairly common cause. It can be briefly summarised as follows:
4.1
On or during October 2020, the Applicant applied, and was admitted to
the Master’s
Program in Information Studies at the First
Respondent.
4.2
Upon submission and verification, the Applicant was issued with an
acceptance letter in
April 2021. One of the admission
requirements was that Applicant should comply with Rule G36 of the
General Academic
Rules of the First Respondent which states the
following:
‘
A relevant
honours degree or equivalent, or at least 60% obtained as an average
final mark in the appropriate learning program.’
4.3
The Applicant was assigned a supervisor, Professor MA Dikotla, and
all the required course
and research work were concluded within the
stipulated time frames. During or about October 2022, Professor
Dikotla recommended
that the Applicant’s full dissertation be
accepted as meeting the requirements for the conferment of the
Master’s degree.
4.4
On or about the 25
th
of October 2022, Professor Dikotla
forwarded a trail of emails to the Applicant wherein Professor
Mogoboya Mphoto informed the
Head of the Department of
Communications, Media and Information Studies, Professor Bopape that:
‘
Please note
that BTECH Degree is not permissible by the University.’
4.5
Further correspondence ensued between the Applicant and the First
Respondent and on the
1
st
of February 2023, she was served
with a notice of termination of her studies, which indicated that she
failed to meet the admission
requirements as stated in the General
Academic Rules of the University.
4.6
The said notice furthermore indicated that the Applicant has the
right to file and appeal.
4.7
On or about the 1
st
of March 2023, an internal appeal was
lodged by the Applicant against the said decision. No response
was forthcoming after
the lodgement of the internal appeal.
4.8
On the 5
th
of May 2023, the Applicant received
correspondence from the First Respondent stating that
inter alia
this is not an appeal case as it does not fall under Rule G10 of
the First Respondent’s academic rules.
4.9
A meeting was held between the Applicant, her legal representative
and the First Respondent
on the 23
rd
of May 2023. It
was conveyed to the Applicant at the meeting that she should
re-register for a further academic year and
that the Masters program
should be repeated for a period of 12 (twelve) months. This
will enable the First Respondent to
revisit their rules.
4.10
The aforesaid meeting and further discussion did not lead to a
amicable resolution of the matter and
the current proceedings were
instituted.
[5]
Premised on the aforesaid facts,
the Applicants argued that the
decisions of the First Respondent are unlawful, irrational and
unfair. The Applicant also
argues that the First Respondent has
created a legitimate expectation and is restrained by the doctrine of
functus officio.
[6]
The First Respondent in return
argued that, as a public higher
education institution, it owes a considerable duty to past, present
and future students to ensure
that its degrees, diplomas and
certificates are of the highest standard and are qualitatively
comparable with degrees and qualifications
of the other tertiary
institutions.
[7]
The First Respondent furthermore
submitted that the Applicant’s
prior degrees did not meet the criteria for
admission
, and as
such she could not be conferred the said Master’s degree.
[8]
It was furthermore submitted
that the decision to terminate the
studies was not final as the Applicant could have re-applied through
the process of RPL (Recognition
of prior learning).
Issues that require
determination:
[9]
This Court is called upon to
determine if the decision of the First
Respondent to terminate the studies of the Applicant and to refuse to
confer the degree
on her, must be reviewed and set aside. It
must furthermore be determined if this Court is in a position to
substitute the
said decision with a decision to the effect that the
degree must be conferred on the Applicant.
The Applicable
Legal Principles:
[10]
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.
[11]
The
Promotion of Administrative Justice Act,
Act 3 of 2000
(PAJA) was promulgated to give effect to this constitutional right.
[12]
The Applicant submits that the First Respondent’s
unilateral
termination and subsequent refusal to confer the Master’s
Degree on her was unlawful, irrational and unfair.
[13]
The procedural unfairness and unreasonableness are manifest:
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 entertain the matter at the internal appeal infringes
the Applicant’s right to fair administrative action that is
lawful, reasonable and procedurally fair;
13.3
It is also apparent that the First Respondents proposal to resolve
the matter, will entail that the Applicant must enrol for a further
12 (twelve) months. It is not clear what the aim of this
further enrolment period is since the Applicant has fully complied
with the academic requirements of the Master’s course.
[14]
The failure to have due regard to the
audi alteram partem
principle renders the decision procedurally unfair as
contemplated in Section 3(2)(b) and 6(2)(c) of PAJA.
[15]
In casu
it is also common cause that the original decision to
approve the Applicant’s enrolment for her Master’s Degree
was
not revoked or reviewed by a court of law. In this Court’s
view, the First Respondent is therefore
functus officio
and
cannot revisit the decision until same is set aside by a court of
law.
[16]
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
[1]
where
the Constitutional Court confirmed that even where the decision of
the state organ was defective, such organ must apply
formally
for a court order to set aside the defective decision, so that the
court can properly consider its effects on those subject
to it. The
decision remains effectual until properly set aside. It could not be
ignored or withdrawn by internal administrative
fiat.
[17]
The Applicant also submits that the
decision was irrational. This is premised on the fact that she
was duly admitted and successfully
completed the curriculum of the
Master’s degree.
[18]
It is
however not necessary for this court to consider the remaining
grounds.
In
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others
v
Chief
Executive Officer, South African Social Security Agency, and
Others
[2]
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.’
[19]
In as far as grounds for review has been established,
the impugned
decision 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.
[20]
The Applicant also prays for a substitution of the decision
to the
effect that the degree must be conferred on her within a period of 10
(ten) days from the date of this order.
[21]
Section 8(1)(c) of PAJA provides that a court or tribunal,
in
proceedings for judicial review in terms of Section 6(1) may grant
any order that is just and equitable, including an order
setting
aside the administrative action and, in
exceptional cases
,
substituting or varying the administrative action or correcting a
defect resulting from the administrative action.
[22]
It is trite
that PAJA does not pertinently identify circumstances that would
constitute ‘exceptional circumstances’.
In the case
of
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Limited and another
[3]
the following was stated by the Constitutional Court at [47]:
‘
[47] To
my mind, given the doctrine of separation of powers, in conducting
this enquiry there are certain factors that should
inevitably hold
greater weight. The first is whether a court is in as good a
position as the administrator to make the decision.
The second is
whether the decision of an administrator is a foregone
conclusion. These two factors must be considered cumulatively.
Thereafter, a court should still consider other relevant factors.
These may include delay, bias or the incompetence of an
administrator.
The ultimate consideration is whether a
substitution order is just and equitable. This will involve a
consideration of fairness
to all implicated parties. It is prudent to
emphasise that the exceptional circumstances enquiry requires an
examination of each
matter on a case-by-case basis that accounts for
all relevant facts and circumstances.’
[23]
The Constitutional Court then specifically analysed
the concepts of
‘in as good a position’ and ‘foregone conclusion’
and inferred that these aspects are interrelated
and interdependent.
The nature of the decision may dictate that a court defer to the
administrator for instance in respect
of policy-laden and polycentric
decisions.
[24]
The
appropriateness of granting a substituted order will thus depend on a
consideration of the fairness to the parties in each individual
case.
In the well-known words of Ponnan AJ
[4]
:
‘
There is no
rule of universal application as to what is fair. The fairness
envisaged is fairness to both sides. The
matter can never be
conclusively determined until all of the facts of a particular case
are known.’
[25]
Having regard to the factors identified by the Constitutional
Court
set out herein before, this Court is of the opinion that exceptional
circumstances have not been shown to exist for the substitution
of
the order.
[26]
Fairness to all parties concerned will not be achieved
if this Court
substitutes the decision in the absence of an adequate enquiry into
all the relevant facts. This court is,
after all, not an
academic administrator and the First Respondent will be in a better
position to determine if the degree should
be conferred immediately.
[27]
This does not mean that the First Respondent can simply
take the same
decision against without due regard to the contents of this judgment.
Costs:
[28]
The Applicant is substantially successful in the relief
prayed for.
There is no reason to deprive her of the costs. Having regard
to the nature of the relief prayed for, the
complexity of the matter
and the importance of the case to parties, costs to counsel on Scale
B is warranted.
Order:
[29]
In the result the following order is made:
29.1
The decision taken by the First Respondent on the 30
th
of
May 2023, in terms whereof the Applicant’s registration and
conferral of the Masters Degree was refused, is hereby reviewed
and
set aside.
29.2
The decision is hereby referred back to the First Respondent for
redetermination.
29.3
The First Respondent is ordered to pay the costs of the Applicant on
party and party scale, including
costs to counsel on Scale B.
M BRESLER AJ
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
FOR THE APPLICANT
:
Adv. B
Madavha
INSTRUCTED BY
:
Gardee Godrich
Attorneys
Johannesburg
reception@gardeeattorneys.co.za
rabbi@mashabelaattorneys.co.za
admin@mashabelaattorneys.co.za
FOR THE FIRST
RESPONDENT
:
Adv. M Majozi
Adv. P Sekati
INSTRUCTED BY
:
Dikgati Mphahlele
Atorneys
Polokwane
admin@dmainc.co.za
[1]
2014 (3) SA 481
(CC) at [90] to [92]
[2]
2014 (1) SA 604 (CC)
[3]
2015 (1) BCLR 1199 (CC); 2015 (5) SA 245 (CC)
[4]
Louw
and Others v Nel
2011 (2) SA 172
(SCA) at [31]