IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case No: 2025-096871
In the matter between:
SHIKOMBISO MABUNDA Applicant
and
CAPE PENINSULA UNIVERSITY OF TEC HNOLOGY Respondent
Coram: LEKHULENI JD
Heard: 29 July 2025
Delivered: Electronically on 1 September 2025
JUDGMENT
___________________________________________________________________
LEKHULENI J:
Introduction
[1] This is an application in which the applicant seeks an order directing the
respondent to award her a BT ech qualification , based on a 64% mark awarded to her
after a reassessment test, alternatively, that the said degree be awarded to her
based on the Recognition of Prior Learning . The applicant also seeks an order that
this Court declare all reassessments conducted by the respondent without a proper
legal basis to be unlawful and invalid and issue fo rmal acknowledgement of the
administrative failures in the applicant’s matter.
[2] The applicant also prays for an order declaring that the respondent has
violated her right to dignity in terms of section 10 of the Constitution, as well as her
right to c hoose and practice her profession freely in terms of section 22 of the
Constitution. In addition, the applicant seeks a structural interdict that the respondent
be required to conduct a review of its policies and procedures regarding academic
records, Recognition of Prior Learning, and assessments, and submit a compliance
report to this Court within 60 days of the court order.
Background Facts
[3] The applicant is a n adult female residing in, Sunninghill, Gauteng Province,
South Africa. The applicant is employed as a Geographic Information Systems (GIS)
T echnician at Rand Water, where she uses GIS tools for infrastructure planning and
management. She holds a National Diploma in Environmental Management and a
National Diploma in GISc and Carto graphy. The applicant is registered as a GISc
T echnician with the South African Geomatics Council.
[4] The respondent is the Cape Peninsula University of T echnology (CPUT), a
public higher education institution established in terms of the Higher Educatio n Act
101 of 1997 (the Higher Education Act), with its principal place of business located in
Cape T own, Western Cape.
[5] In 2016, the applicant enrolled full -time at CPUT to pursue a BT ech degree in
Environmental Management. The applicant was registered for the following five
subjects –
5.1 Geotechnology 4,
5.2 Environmental Management 4,
5.3 Environmental Resources 4,
5.4 Environmental T echnology 4, and
5.5 Geohydrology 4.
[6] The applicant passed four courses. The only course she failed was
Geohydrology 4. The applicant asserts that due to the ‘Fees Must Fall’ protests that
took place in 2016, the final exams for that year were deferred to January 2017. She
wrote the deferred exam in Geohydrology 4 in January 20 17 and failed. O n 17
February 2017, the applicant submitted a formal application for a re -mark of her
exam script to the CPUT’s Examination s and Graduation Centre. According to the
applicant, her re -mark results were never released to her despite consistent follow -
ups.
[7] T o this end, the applicant states that she has email records dating back to
2019, which she has sent to the Dean and the Head of Department regarding the
missing results. The applicant opines that the results were only disclosed to her via a
Zoom meeting i n August 2022. The meeting was attended by her, the Dean, and the
lecturer. The Dean and the lecturer informed her that she had obtained a remark
score of 64% and that, due to a low year mark, her results were reduced to 44%.
They also told her that she ne eded a score of 80% to pass. The applicant asserts
that she was never provided with the formal written outcome or confirmation of the
re-marked results.
[8] In 2023, she was offered a reassessment. The applicant contends that she
declined the sit -in exa m because, she did not have access to the library, and no
memos or prior assessment papers were provided. Furthermore, she was given
short notice to write the exam. The applicant pointed out that the reassessment
violated CPUT’s own policy under Rule 6.18, which provides that reass essments
must exclude the year mark and must occur within 30 days of the new academic
cycle.
[9] According to the applicant, h er reassessment occurred years later and
included a consideration of a year mark. Furthermore, the examination was not set
included a consideration of a year mark. Furthermore, the examination was not set
or approved with institutional Senate processes as required. She had no access to
CPUT libraries and was denied academic tools until December 2024 . The applicant
asserted that in terms of the CPUT rules , only regist ered students may attend
lectures, write tests or assessments and submit assessment s in any given subjects.
According to the applicant , all the reassessments given to her between 2022 and
2024, were unlawful as she was not officially registered at that time.
[10] The applicant contend ed that CPUT's decision to deny her the BT ech degree,
despite the confirmed re -mark results of 64%, was unjust. This denial has
significantly hindered her access to pr ofessional opportunities. The applicant
asserted that the requirement to undertake a rewrite and the subsequent refusal by
CPUT to award her the BT ech degree were in direct violation of her constitutional
rights as a student.
[11] She subsequently report ed the matter to the Public Protector on 5 June 2023
for investigation. The Public Protector conducted a thorough investigation into the
matter. According to the interim report provided by the Public Protector, which is
included in the applicant's application, the applicant has asserted that her BT ech
degree should be conferred upon her without the necessity of a rewrite of any
examination. The Public Protector stated that the applicant expressed the belief that
the rewrite was scheduled to take place in 2017, a time when she still had a clear
recollection of the relevant academic material.
[12] The Public Protector concluded that despite the delay by CPUT to issue the
applicant’s results to her (re-marking results) , in terms of section 65B (c) and (d) of
the Higher Education s Act, CPUT is not allowed to confer a degree on a student who
does not meet the standard of proficiency which is determined through assessment .
Based on the evidence and information obtained during the investigation, the Public
Protector conclu ded that the applicant ha d not attained the statutory required
Protector conclu ded that the applicant ha d not attained the statutory required
standard of proficiency through assessment to be conferred the BTech degree by
CPUT .
[13] Additionally, the Public Protector found that the conduct of CPUT by requiring
the applicant to sit for an assessment regarding the outstanding subject , was not
unreasonable, but complied with the requirement of section 65 B(c) and (d) of the
Higher Education Act and in the absence of which , CPUT was not allowed to confer
the BT ech degree to the applicant.
[14] Notwithstanding, t he applicant respectfully requested this Court to grant the
relief sought in the notice of motion, specifically that CPUT be directed to award her
the BT ech degree.
[15] The respondent served and filed a notice to oppose and uploaded it on Court
Online and did not file the necessary answering affidavit in response to the
applicant’s application. For reasons that will become apparent below, there are valid
reasons that ostensibly explain why the respondent did not file an answering affidavit
within the designated timeframe. However, it is important to note that the
respondent's version, though not in an affidavit format, is contained in the annexures
and correspondences that form part of the applicant’s application. I will carefully
examine these documents, as they have been presented to this Court for
consideration and they form part of the applicant’s application.
[16] In her application, the applicant included a letter dated 19 April 2024, written
by the Vice Chan cellor and Principal of CPUT , addressed to the Public Protector
regarding the ongoing impasse between the applicant and CPUT . In th at letter,
CPUT provided a detailed explanation of the reasons why the applicant was not
awarded the BT ech degree in question. The Vice Chancellor stated that the applicant
was enrolled in a BT ech degree program at CPUT in 2016. The Vice Chancellor
noted that the program had four courses, one of which is Environmental
Geohydrology 4. For all courses, students needed to obtain a final mark of 50% to
pass the specific course. The final mark was comprised of a combination of class
tests (year mark) and the final summative assessment (exam) , according to
predetermined weightings. The Vice Chancellor further stated that a student who
achieved less than 50% for the final computed mark could qualify to write a
achieved less than 50% for the final computed mark could qualify to write a
reassessment of the exam. The reassessment mark is then u sed to calculate a new
final mark, according to predetermined weightings.
[17] The Vice Chancellor pointed out that in 2016, the applicant achieved a final
mark of 37.2% for Environmental Geohydrology 4. Importantly, a course’s final mark
is composed of the marks from three class tests and one final summative
assessment (exam). The applicant scored 29%, 18% and 55% on the three class
tests and 42% on the exam. Since the class tests account for 20% (equivalent to
60% of the total weight of the final mark) and the exam accounts for 40%, the final
mark amounted to 37.2%. The applicant was given the opportunity to do a
reassessment of the exam.
[18] The Vice -Chancellor also stated that an overall mark of 37.2% did not
ordinarily qualify a student for reassessment, but students in this case were given
added consideration owing to the serious disruptions and closure experienced by the
university due to the ‘Fees Must Fall’ protests. According to the Vice Chancellor, the
applicant was not satisfied with the exam mark awarded after reassessment and
requested a re -mark. The re -mark gave the applicant a mark of 58% for the exam.
When this is combined with the class tests, the applicant would have attained a new
overall mark of 43,6%. She would still have failed the subject. However, since this
was he r last outstanding course, the applicant was given yet another opportunity to
be reassessed in accordance with the University’s assessment rules.
[19] The Vice Chancellor also explained various options that were made to
accommodate the applicant. Among others, the applicant was offered a
reassessment in January 2023 on work completed in 2016, after it was approved by
the University S enate. Instead, the applicant complained about what she felt was
bias against her by the head of the department. She also requested an open -book
test or assignment instead of a sit -down exam but was informed that she had to take
the reassessment exam. Desp ite rearranging the date for the reassessment to 30
January 2023 for the sake of the applicant, the Vice Chancellor stated that the
applicant did not turn up for it.
[20] The Vice Chancellor notes that, to assist the applicant further, CPUT explored
[20] The Vice Chancellor notes that, to assist the applicant further, CPUT explored
the option of granting the applicant an exemption for the outstanding subject via
Recognition of Prior Learning, which would be based on whether her work
experience and other qualifications met the required outcome of the outstanding
course subject. The applicant submitted her CV and other required information on 22
June 2023, and an assessment revealed that her experience and other qualifications
were insufficient to meet the subject outcomes. This was commu nicated to her and
to the lead investigator of the Public Protector, who handled the applicant’s
complaint.
[21] Subsequent thereto, an alternative option was provided to the applicant in the
form of a written project assessment that she could complete f rom home. This was
designed as a substitute for the sit -down exam that was initially planned for
reassessment. In addition, in response to the applicant’s request, the project was set
by a lecturer external to CPUT . The project topic was sent to the applicant on 15 July
2023, with a submission due date of 4 August 2023. According to the Vice
Chancellor, during this period, the applicant was also sent notes for the subject and
informed that she could ask for assistance from the lecturers.
[22] The Vice Chancellor explained that the applicant submitted her assignment on
4 August 2023. It was assessed by an external lecturer and an external moderator,
who both gave her failing marks of 29% and 23%, respectively. The applicant was
given another opportunity to resubmit the project, which was due on 28 August 2023,
but refused to do so, despite receiving detailed written feedback for guidance. The
Vice Chancellor also mentioned that the applicant was allowed to view the actual
marked script, but she made no attempts of obtaining the script. The Vice Chancellor
asserted that CPUT provided the applicant with numerous opportunities and support
from the latter half of 2022 through to August 2023, when the applicant declined to
participate further in the process. According to him, the University remains open to
the applicant resubmitting her project for exam purposes.
[23] The timeline of events provided by the Vice Chancellor aligns with the
applicant’s explanation. However, the only difference is that the applicant argues that
she should be awarded her degree because she achieved a score of 64% during her
she should be awarded her degree because she achieved a score of 64% during her
reassessment. She contends that, according to the examination rules at CPUT , her
year mark should not have been considered during the reassessment process.
Applicable legal principles and discussion
[24] As discussed above, the applicant seeks an order that this Court di rect CPUT
to award her the BT ech qualification based on the alleged 64% mark s she obtained
after she was reassessed, or on the Recognition of Prior Learning . The applicant
also seeks an order declaring that all reassessments conducted by CPUT without a
proper legal basis are unlawful, invalid, and of no force and effect.
[25] The respondent’s attorneys served the applicant with a notice to oppose and
requested that the applicant provide them with access to the court's online platform
to upload their notice to oppose. At the hearing o f this matter, the applicant
presented the court with an email from the respondent’s attorney, which referred to
the service of t he notice to oppose upon the applicant. The respondent's attorneys
successfully uploaded the notice of opposition on Court Online.
[26] I pause to mention that the applicant appeared in person at the hearing of this
application. However, f rom reading the applicant's Notice of Motion and founding
affidavit, it appears to me that the applicant was assisted in drafting the application
by someone with a background in law.
[27] As explained above, d uring the hearing, the applicant presented to the court
an email correspondence from the respondent's attorneys , attaching a notice to
oppose. In that email correspondence, the respondent’s attorney also requested that
the applicant indicate whether she was amenable to accepting service of all
subsequent notices and pleadings in this matter via email. If not, the applicant was
requested to provide them with a physical address within 25 kilometres of the court ,
where the applicant would accept service of all documents in terms of Rule 6(5)(b)(i)
of the Uniform Rules of Court.
[28] The applicant rejected the respondent’s notice of opposition, asserting that
the respondent had ample time to submit such a notice within the specified
the respondent had ample time to submit such a notice within the specified
timeframe. Furthermore, the applicant asserted that the respondent provided no
explanation and did not file any application for condonation for their late filing of the
notice of opposition.
[29] The applicant’s application is marred by several inherent irregulari ties, which I
turn to consider before addressing this application on its merits. This matter
appeared before this Court in the urgent court. No urgency whatsoever was pleaded
in the applicant’s affidavit. I must mention that Rule 6(12) of the Uniform Rules of
Court confers courts with a wide discretion to decide whether an application justifies
enrolment on the urgent court roll based on the facts and circumstances of each
case. (Mogalakwena Local Municipality v Provincial Executive Council, Limpopo
[2014] 4 AII 67 (GP) at para 63; Caledon Street Restaurants CC v D’ Aviera 1998
JDR 0116 (SE) at 8.)
[30] A perusal of the applicant’s Notice of Motion and founding affidavit will show
that she failed to comply with the provisions of Rule 6 (12) in that she failed to set out
the circumstances which render this matter urgent , nor did she set out why she could
not obtain relief if the matter was heard in the normal course. On this ground alone,
the matter stands to be struck from the roll. It is peremptory that an applicant set out
explicitly the circumstances on which she relies to render the matter urgent, and the
reason why she claims that she cannot be afforded substantial relief at a hearing in
due course. In other words, an application is urgent when an applicant cannot obtain
substantial redress in due course. (Dlamini v City Manager of the City of Ekurhuleni
Metropolitan Municipality [2023] ZAGPJHC 147 para 27).
[31] The timeline of events outlined above clearly indicates that this application is
not urgent . The dispute between the applicant and the respondent commenced in
2016 and persisted until 2024. The applicant did not institute any proceedings since
that time and only instituted the application in July 2025. There is no explanation in
the affidavit as to why the applicant would not be afforded substantial redress in due
the affidavit as to why the applicant would not be afforded substantial redress in due
course. In my view, this matter is not urgent and s hould be struck from the roll on
that score alone.
[32] Moreover, it is important to note that t he application, inclusive of the
applicant’s founding affidavit and annexures, was served upon the respondent on 2
July 2025 by the Sheriff. In the Notice of Motion, the applicant directed the
respondent to file and serve its notice of intention to oppose on or before 14 July
2025. According to the calculations of days based on the rules, the applicant gave
the respondent eight (8) days to file a notice of opposition after the respondent was
served with the application . T o this end, the applicant’s application does not comply
with Rule 6(5)(b)(iii) of the Rules of Court, which provides:
‘In a notice of motion the applicant shall set forth a day, not less than 10 days
after service thereof on the respondent, on or before which such respondent
is required to notify the applicant, in writing, whether respondent intends to
oppose such application, and shall further state that if no such notification is
given the application will be set down for hearing on a stat ed day, not being
less than 10 days after service on the said respondent of the said notice ’. (my
underlining)
[33] It must be stressed that the days envisaged in Rule 6(5)(b)(i) are court days
and must be calculated in terms of the definition of ‘court d ays’ in Rule 1. According
to Rule 1, a court day means a day that is not a public holiday, Saturday or Sunday,
and only court days shall be included in the computation of any time expressed in
days prescribed by the rules or fixed by any order of court. I am mindful that in terms
of Rule 27(3), a failure to allow for the dies prescribed by the rules may be
condoned. No formal application for condonation has been made in this matter .
However, the applicant persists in her application for declaratory relief and a
directory interdict. I am of the view that it is not in the interest of justice to condone
this non-compliance as it will be apparent herein below.
[34] The applicant di d not give her service address within 25 Kilometres of the
office of the registrar. The applicant gave her Johannesburg address as her service
address. She was requested to provide a service address within 25 Kilometres of the
registrar’s office by the respondent’s attorney to enable them to serve her with
opposing papers and she refused. Rule 6(5)(b) (i) provides that ‘in a notice of motion
opposing papers and she refused. Rule 6(5)(b) (i) provides that ‘in a notice of motion
the applicant shall appoint an address within 25 kilometres of the office of the
registrar and an electronic mail address, if available to the applicant, at either of
which addresses the applicant will accept notice and service of all documents in
such proceedings .’
[35] There are significant reasons for the stipulation in Rule 6(5)(b)(i) that requires
an applicant or their legal representatives to provide an address within the specified
radius. This address serves a crucial function, as it allows the respondent to serve
documents or opposing affidavits related to the dispute between the parties
effectively. Moreover, the address envisaged in Rule 6(5)(b)(i) is intended to enable
the respondent to ascertain the location of the applicant, thereby facilitating
communication a nd advancing the resolution of the matter between the parties. In
addition, an address envisaged in Rule 6(5)(b)(i) is intended to make the respondent
know where to find the applicant , if they want to discuss possible settlement.
[36] In other words, Rule 6(5)(b)(i) aims to bring the applicant and the respondent,
or their attorneys, together at the earliest possible moment in the litigation. The rule
is also intended to enable the parties, particularly the respondent, to have immediate
access to the appli cant, the applicant’s attorney or the latter’s correspondent in
dealing with the matter, either in filing opposing papers or negotiating a settlement.
An address beyond this radius would frustrate its intended objective.
[37] In the present matter, the respondent intended to oppose the applicant’s
application and to serve the necessary affidavits to oppose the applicant’s
application. The notice to oppose was served upon the applicant and filed on the
Court Onli ne portal. The applicant failed to give an address within 25 kilometres of
the office of the Registrar despite being requested to do so. The respondent also
refused a request to accept service by email.
[38] I am cognisant that the applicant is appearing in person howev er, t his
irregularity, in my view, vitiates the applicant’s application. Furthermore, the
applicant’s notice of motion should have given the respondent at least 10 court days
applicant’s notice of motion should have given the respondent at least 10 court days
to file its notice to oppose and 15 court days thereafter to file its answering a ffidavit.
Instead, the respondent was given 8 days to file its notice to oppose and 10 days to
file its answering affidavit. This, in my view, offends Rule 6(5) of the Uniform Rules.
[39] The applicant is seeking extraordinary remedies. In an application of this
nature, mindful of the right of access to courts entrenched in our Constitution, I
believe that the respondent must be properly notified of the application and be given
time in terms of the rule s so that all issues can be properly ventilated. Considering
the deficiencies identified in this application, I believe it must be struck from the roll
for non -compliance with the court rules.
[40] Although the respondent was not afforded a proper opportunity to place the
reasons for its opposition before the court, some of the grounds were foreshadowed
in the applicant’s papers by way of annexures attached to the founding papers. This
is dealt with below. Furthermore, the applicant’s case was inherently problematic and
characterised by material errors of law. It was devoid of merit. Section 65B of the
Higher Education Act delineates the standard governing the awarding of degrees,
diplomas, and certificates by institutions of higher education. This section is binding
on the respondent.
[41] For completeness, section 65B of the Higher Education Act provides:
‘(1) A public higher education institution may, subject to its institutional statute
and this Act, award diplomas and certificates and confer degrees.
(2) Save as provided in section 65C, no diploma or certificate may be
awarded, and no degree may be conferred by a public higher education
institution upon any person who has not –
(a) been registered as a student of such public higher education institution
for the period prescribed by the Senate of such institution; And
(b) completed the work and attained the standard of proficiency
determined through assessment as required by the Senate of the
public higher education institution .’
[42] This section makes it abundantly clear that the respondent , as a public higher
education institution may only confer a degree on a person who has been registered
as a student of such public higher education institution for the period prescribed by
the Senate of such institution and who has completed the work and attained the
standard of proficiency determined through assessment as required by the Senate of
the public higher education institution.
[43] Simply put, the applicant can be awarded the BT ech degree if she meets the
standard of proficiency, which is determined through assessment. I am mindful that
the respondent did not file its answering papers; however, from the applicant’s own
application and annexures , CPUT has explained why the applicant was not
conferred with her BT ech degree.
[44] Significantly, CPUT is an organ of State in terms of section 239(b)(ii) of the
Constitution, read with section 65 B (1) of the Higher Education Act. The applicant
seeks a mandatory interdict against the respondent to be awarded a BT ech degree.
This remedy, in my view, encroaches on the separation of powers do ctrine. I am
cognisant that this Court is vested with the inherent power to review any procedural
irregularities committed by organs of state, including the respondent, in terms of
Promotion of Administrative Justice Act 3 of 2000 (PAJA), where there is a violation
of rights.
[45] It is, however, an established principle of our law that where a public authority
has a discretion in a matter, a directory interdict will only extend to directing the
functionary to comply with its duty of deciding the matter properly. Our Courts have
repeatedly laid down that they do not want to usurp the powers of the authorities to
whom the legislation has vested the powers to decide one way or the other. Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (7) BCLR
687 para 46. T o do otherwise, would constitute an unwarranted usurpation of the
powers entrusted to the public authorities by the relevant statute . (University of the
Western Cape and Others v Member of Executive Committee for Health and Social
Services and Others 1998 (3) SA 124 (C) at 130H-J.
[46] In the ordinary course, the Courts are inclined to remit the matter back,
because the Court is slow to assume a discretion which has , by statute , been
entrusted to another functionary or repository of power. The administrative review
entrusted to another functionary or repository of power. The administrative review
context of s ection 8(1) of PAJA and the wording under section (1)(c)(ii)(aa) make it
perspicuous that substitution remains an extraordinary remedy. Remittal is still
almost always the prudent and proper course. It is only in exceptional cases that this
principle will be departed from. In effect, even where there are exceptional
circumstances, a court must be satisfied that it would be just and equitable to grant
an order of substitution. (Trencon Construction (Pty) Ltd v Indus trial Development
Corporation of South Africa Limited and another 2015 (5) SA 245 (CC) para 32).
[47] Furthermore, e ven if there are exceptional circumstances, substitution c an
only be ordered if it will be just and equitable. This require s considering the fairness
of substitution to all the parties involved. As to w hat is fair depend s on the
circumstances of each case. In Louw and Others v Nel 2011 (2) 171 (SCA) para 31,
the court stated that t here 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 the facts of a particular case are known.
[48] In the present matter, the applicant seeks declaratory relief in terms whereof
she essentially asks this court to usurp the functions of the respondent and to award
her the BT ech degree. This relief is fundamentally flawed as the applicant has failed
to ask for the review and set ting aside of the decision of the respondent which held
that she failed to qualify for the award of the degree. The decision of CPUT that she
failed to qualify for the award of the degree remains effectual until properly set aside
on review. (Member of the Executive Council for Health, Eastern Cape and Another v
Kirkland Investments (Pty) Ltd t/a Eye and Lazer Institute 2014 (3) SA 481 (CC)
paras 90 to 92 ; Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222
(SCA). Therefore, the court cannot simply grant the declaratory relief.
[49] From the documents filed, the applicant has been given six opportunities for
reassessment. Despite failing her written project assessment, which she was
allowed to complete from home, the applicant was allowed to resubmit her
assessment following the notes or details given for guidance. As foreshadowed
above, the Vice Chancellor indicated in her correspondence that the University
above, the Vice Chancellor indicated in her correspondence that the University
provided the applicant with numerous opportunities and support from the latter half of
2022 through to August 2023, when the appli cant refused to take any further part in
the process.
[50] Additionally , from the documents filed, CPUT indicated that it remained open
to the applicant to resubmit her project, for exam purposes. The Vice Chancellor
mentioned that if the applicant passes the outstanding subject, she can still obtain
the BT ech based on the 2023 assessment.
[51] Considering the information presented above, it is evident that after conveying
the re -mark result s in August 2022, CPUT took the necessary remedial steps,
including setting a rewrite and reassessment assignment for the applicant. T o this
end, I agree with the views expressed by the Public Protector that the applicant’s
preliminary result for the assign ment was not satisfactory and, as a result, she did
not attain the required standard of proficiency determined through assessment to be
conferred on the BT ech qualification as envisaged in section 65B. Simply, the
applicant can only be awarded the BT ech qu alification if she attains the required
pass mark for Environmental Geohydrology 4.
[52] In my opinion, it cannot be said that CPUT's conduct, by requiring the
applicant to sit for an assessment regarding the outstanding subject, was
unreasonable. It was a requirement in terms of section 65B (2)(a) and(b) of the
Higher Education Act. In the absence of such an assessment for proficiency, CPUT
is not allowed to confer a BT ech degree. Furthermore, this court does not have the
full detail of the respondent’s version other than the letters which were exchanged. In
my view, fairness to all the parties concerned will not be achieved if this Court
awards the BT ech degree to the applicant in the absence of an adequate enquiry into
all the relevant facts.
[53] This court, after all, is not an academic administrator; CPUT is better
positioned to determine whether the degree should be conferred. The Supreme
Court of Appeal has cautioned that judicial deference is particularly appropriate
where the s ubject matter is technical or of a kind where the Court has not particular
proficiency. (Minister of Environmental Affairs and Tourism v Phambili Fisheries (Pty)
Ltd 2003 (6) 407 at para 53). The Constitutional Court has also confirmed that it is
Ltd 2003 (6) 407 at para 53). The Constitutional Court has also confirmed that it is
appropriate for a court to show respect to a decision that requires an equilibrium to
be struck between a range of competing interests of considerations, and which is to
be taken by a person or institution with specific expertise in that area.( Bato Star
Fishing (Pty) Limited v Mini ster of Environmental Affairs 2004 (4) SA 490 (CC) par a
48).
[54] Lastly, I have noted that the applicant prays for an order declaring that the
respondent has violated her right to dignity in terms of section 10 of the Constitution,
as well as her right to choose and practice her profession freely in terms of section
22 of the Constitution . The applicant also contend ed that it was impermissible for
CPUT to consider the year mark in her reassessment exam as that conflict s with
Rule 6.18 of the exam rules of CPUT which regards such assessment as standalone
assessment with no year mark used. The applicant also impugned the Regulations
and Rules of CPUT . I n my opinion, it would be inappropriate to decide on these
matters with out conducting a thorough inquiry and hearing CPUT's perspective,
particularly considering the procedural irregularities mentioned earlier.
Order
[55] In the result, the following order is granted.
55.1 The application is hereby struck off the roll.
55.2 In the event that the applicant elects to re -enrol or bring a fresh
application, such re -enrolment and/or fresh application must be
effectively served on the respondent who must be given adequate
opportunity and time to oppose such application in terms of the Uniform
Rules of Court.
55.3 No order is made as to costs.
____________________________ _
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES:
For the applicant: In person
For the respondent: None