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1992
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[1992] ZASCA 179
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Minister of Education and Training and Others v Ndlovu (114/1991) [1992] ZASCA 179; 1993 (1) SA 89 (AD); [1993] 1 All SA 269 (A) (28 September 1992)
LL
Case No 114/1991
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
THE MINISTER OF EDUCATION
AND TRAINING
First Appellant
THE DIRECTOR-GENERAL, DEPARTMENT
OF EDUCATION AND
TRAINING
Second Appellant
THE PRINCIPAL, DURBAN FINISHING
SCHOOL
Third Appellant
and
PINKY PRIMROSE NDLOVU
Respondent
CORAM
: BOTHA, KUMLEBEN, GOLDSTONE JJA,
NICHOLAS et HARMS AJJA
HEARD
: 7 SEPTEMBER 1992
DELIVERED
: 28 SEPTEMBER 1992
JUDGMENT
BOTHA JA
:-
2 During 1989 the respondent attended the
Durban Finishing School as a full-time student in standard 10. She studied six
subjects,
one of which was Biology (higher grade). In November 1989 she wrote
the examinations in these subjects for the National Senior Certificate.
The
conduct of the examinations was under the control and administration of the
Department of Education and Training, of which the
first appellant is the
Minister and the second appellant the Director-General.
In January 1990 the respondent was officially notified that she had passed
all her subjects, with matriculation exemption. Her success
meant that she had
achieved her goal of qualifying for further studies in the nursing profession.
Her joy was, however, short-lived.
On 22 January 1990 the principal of the
school (the third appellant) issued an "urgent notice" advising that "all
present
3
Biology HG results (Nov 1989) are cancelled", and
that candidates were required to rewrite the paper on
16 February 1992 "to be able to obtain Biology HG
results". This message caused the respondent to
consult an attorney, who then addressed a letter to
the second appellant. The latter responded in a
letter of 6 February 1990, in which the following was
stated:
"On 18 November 1989, the day on which the
examination in Biology HG was
written, Mrs
Kemp, the principal of the Durban Finishing
School, reported
that two candidates had
been caught with worked out answers. The
worked
out answers in their possession were
based on the examination question
paper
that was being written. Both candidates
admitted orally before
witnesses that they
had obtained the Biology HG paper before
the
examination.
Seeing that the Biology HG paper had been available before the examination at
the school in question, it has been decided in terms
of stipulation (2) and (3)
of regulation 17 that all the candidates of Durban Finishing School that took
Biology would have to rewrite
the examination in question .
4
You will appreciate that the Department has to protect the credibility and
integrity of its examinations and certificates."
The
"regulation 17" referred to is part of the regulations made by the first
appellant in terms of section 44 of the Education and
Training Act 90 of 1979
and published in Government Notice No R803 of 16 April 1981 ("the regulations"),
to which further reference
will be made presently.
The respondent thereupon brought an application on notice of motion in the
Durban and Coast Local Division for
inter alia
an order setting aside the
cancellation of the result she had obtained in the Biology examination. She
cited the present appellants
as respondents. They opposed the application. The
matter came before THIRION J, who granted the order prayed for, with costs.
Subsequently
leave was granted to the appellants to appeal to this Court.
5
From the affidavits filed on behalf of the appellants the following facts
appear. The respondent was one of 58 candidates at the
school who sat for the
Biology (higher grade) examination. Five class-rooms were used to accommodate
these candidates. In each there
was an invigilator who supervised the writing of
the examination. The Biology paper received by each candidate contained a
separate
sheet of questions, the answers to which the candidate was required to
enter on that question-paper. Shortly after the commencement
of the examination
the invigilator in one of the class-rooms found a candidate in possession of a
question-paper on which the answers
had already been written. A search of all
the candidates resulted in another one of them, in a different class-room, also
being found
in possession of an already completed question-paper. These two
candidates subsequently admitted that they
6 had obtained possession of the
question-papers some time before the examination and that they had written down
the answers on them
before taking them into the examination room. After the
examination a third candidate came forward and reported that she, too, had
seen
the question-paper before the examination, and that she had memorized the
answers required, in order to be able to write them
down in the examination
room.
These facts were reported to the second appellant. They were the basis upon
which he decided in January 1989 to refuse to recognise
the results obtained by
the candidates who wrote the Biology examination at the school and to require
them to rewrite the examination,
thus in effect cancelling the results of all of
them.
The respondent stated in her founding affidavit that in the room in which she
wrote the
7 examination, no candidate was found in possession of unauthorized
material. She said further that she had not been a party to any
irregularity or
dishonesty before or during the examination. And one of the grounds relied upon
for the relief sought by her, was
that she had not been afforded any opportunity
to be heard before the second appellant came to a decision prejudicially
affecting
her. These averments were not placed in issue by the appellants. It is
accordingly common cause, and the matter was argued on this
footing, that the
respondent was innocent of any irregularity in connection with the examination
and that she had not been given
an opportunity to make representations
protesting her innocence to the second appellant before he decided to cancel the
result obtained
by her.
The case for the appellants is that the respondent had no right to be heard
and that the
8 second appellant was not obliged to consider her guilt or
innocence before he took his decision (or thereafter). The rationale underlying
the appellants' case appears from the affidavit of the second appellant, and it
may be paraphrased as follows. The integrity of the
examination system and of
the certificates issued in terms of it is universally jealously guarded by the
authorities in control of
education, for reasons which are obvious. The
maintenance of this integrity is of the utmost importance to the Department and
its
Director-General. When irregularities occur by which some candidates obtain
an unfair advantage over others, it is frequently impossible
to identify
accurately the individuals who have been so advantaged and those who have not.
The present case is an example of such
a situation. There was clear proof that
some candidates at the school had gained access to a part
9 of the Biology
paper which had irregularly been made available prior to the examination, but it
could not be established which of
the 58 candidates had taken advantage of the
irregularity. All the candidates had studied together in the same class and
there is
a reasonable possibility that more of them than the 3 mentioned earlier
had taken part in the irregularity. The examination and its
results have thus
been rendered suspect in relation to all the candidates at the school. The only
acceptable way of dealing with
this situation, so it is said, is to treat all
the candidates at the school as a group and to require the whole group to
rewrite
the examination. In this manner the integrity of the Department's
examinations and certificates can be preserved whilst at the same
time
protecting the candidates who were innocent of any irregularity by according
them the opportunity to rewrite the examination
and thus to remove any
10
suspicion (and consequent depreciation in worth) that would otherwise have
attached to the certificates they hoped to acquire.
The above reasoning (which, I think, has much to commend it) serves to
explain why the appellants seek to defend the decision which
deprived the
respondent of her pass in Biology, even though she was not guilty of any
irregularity and was denied an opportunity
of protesting her innocence. But it
does not yet address the question whether the second appellant was entitled to
act as he did.
As to that, the appellants contend that the second appellant was
empowered to act as he did by the regulations. whether or not that
contention is
well-founded is the vital issue in the appeal.
I turn, then, to the regulations. As a whole they cover a wide variety of
topics related to different provisions of the Act under
which they were
11
promulgated. One section is devoted to "CONDUCT OF EXAMINATIONS". The provisions
calling for consideration appear in reg 17, which
bears the sub-heading
"Irregularities by candidates". Subregulations (1), (2) and (3) are relevant.
They read as follows: "17. (1)
If any candidate -
(a)
unless otherwise provided
by an authorised person for an examination, takes into the examination room or
has in his possession while
he is in the room, any book, memorandum, notes, card
or other document or paper other than such as may be supplied to him by the
invigilator, his admission card and identification document;
or
(b)
in any irregular manner helps or
attempts to help another candidate, obtains or attempts to obtain help or
communicates or attempts
to communicate with any person (except the
invigilator); or
(c)
disregards the examination
rules or examination instructions referred to in regulation 14(1) [except those
regarding a matter referred
to in paragraphs (a) and (b)] and, after being
warned by the invigilator, continues to disregard the rules and regulations
referred
to; or
(d)
creates a disturbance in
an examination room or behaves in an improper or unbecoming manner and refuses,
after being
12
warned by the invigilator, to stop the
causing of the disturbance or his
improper
or unbecoming behaviour; or
(e) disregards the arrangements of the
invigilator and, after being warned by the
invigilator, continues to disregard the
arrangements referred to;
the invigilator shall immediately bring such irregularity to the notice of
the chief invigilator and the chief invigilator may, after
he has confronted the
candidate concerned with the alleged irregularity and has afforded him the
opportunity to present his side
of the case in writing, or verbally, in the
presence of an invigilator or other witness -
(i) expel the candidate from the
examination room;
(ii) confiscate the candidate's
script; or
(iii) permit the candidate to
continue with the examination; and the chief invigilator shall, immediately
after the examination, submit a complete report, together
with the candidate's
written statement lor, in the case of a verbal statement, the chief
invigilator's written version thereof) and
any other evidence regarding the
matter, to the Director-General.
(2) Should the Director-General be of the opinion that a candidate or group
of candidates has obtained an unfair advantage because
-
13
(a) the contents of a question paper for which a candidate or group of
candidates has entered have become known to him or them prior
to the date and
time on which the examination is conducted; or
(b)
any of the provisions of
subregula-tion (1) has been contravened; or
(c)
another person pretended to be the candidate concerned at the
examination; or
(d) some irregularity or other
has
occurred in connection with the writing of
such examination or the
handling of a
script after such examination has been
conducted;
the Director-General may take one or more
of the following steps:
(i) Prohibit the candidate or group of candidates from entering the
examination room or from further writing the examination; (ii)
refuse to
recognise the results obtained by the candidate or group of candidates in the
examination;
(iii) refuse any person referred to admission to an examination for such
period as the Director-General may determine;
(iv) instruct that any success in a subject or an examination as a whole with
which such candidate has been credited be cancelled;
or (v) reject the
examination script
14
in respect of the subject concerned.
(3) The Director-General may require a candidate or group of candidates referred
to in subregulation (1) and (2) to rewrite the examination
as a whole or in part
on such date, time and place as he may
determine."
It will be seen that there are four
segments of these provisions which bear directly on the facts of this case: the
opening words
of subreg (2), para (a) of subreg (2), para (ii) of subreg (2),
and subreg (3) . In each of these is to be found the expression "group
of
candidates" (as also in para (i) of subreg (2)). This expression is foundational
to the argument for the appellants, which may
be stated as follows: by the use
of the expression "group of candidates" in juxtaposition with "a candidate" or
"the candidate",
the Minister in issuing the regulations intended to authorize
the Director-General to take the steps envisaged against a group
15 of
candidates as an entity, (a) irrespective of whether or not all the individuals
in the group have
been guilty of an irregularity, and (b) without being obliged to afford a
hearing to the individuals in the group. Propositions (a)
and (b) are obviously
closely interrelated. For convenience, I commence with a consideration of (b).
At stake is the rule:
audi alteram partem
(to which I shall refer as "the
audi
principle").
Counsel for the appellants in argument conceded that the
audi
principle applied in cases where the Director-General contemplated taking steps
against an individual candidate in terms of subregs
(2)(a), (2)(ii) and (3). The
concession was clearly correct. A candidate who obtains a pass in an
exam-ination acquires the right
to recognition of his success, and the decision
which the Director-General is empowered to take impinges on that right.
Conse-
16
quently the candidate has a right to be heard, unless the regulations show,
either expressly or by implication, a clear intention
on the part of the
Minister to exclude such a right (see e g
Attorney-General, Eastern Cape v
Blom and Others
1988 (4) SA 645
(A) at 662G-I and
South African Roads
Board v Johannesburg City Council
1991 (4) SA 1
(A) at 10G-I). In the case
of an individual candidate, no indication of such an intention can be found in
the regulations. The fact
that an opportunity to be heard is expressly provided
for in the particular circumstances dealt with in subreg (1) does not warrant
an
inference that it was intended to be excluded in the different circumstances
dealt with in subregs (2)(a), (2)(ii) and (3) (cf
Administrator, Transvaal,
and Others v Zenzile and Others
1991 (1) SA 21
(A) at 37F-38D and
South
African Roads Board v Johannesburg City Council supra
at 16E-17A). In a
situation falling within the
17 ambit of subregs (2)(a), (2)(ii) and (3)
proper effect can be given to the
audi
principle before the
Director-General forms the opinion postulated in the opening words of subreg
(2). Consequently that is the time
when the opportunity to be heard must be
accorded, even if in other circumstances (e g under subregs (2)(a) and (2)(i))
it may not
be possible to apply the
audi
principle effectively or at all
(see e g
Blom
's case
supra
at 665A-666B and 668C-E, and
Administrator, Transvaal, and Others v Traub and Others
[1989] ZASCA 90
;
1989 (4) SA 731
(A) at 750C-F).
That being the position in regard to individual candidates, I turn to
consider the notion of a "group of candidates". The starting-point
of the
argument for the appellants is that a group of candidates constitutes an entity
apart from the individuals comprising it.
In my view the argument falters at its
inception, notionally and linguistically.
18 When the expression "group of
candidates" first occurs, in the opening part of subreg (2), it is used in
context with the obtaining
of an unfair advantage. But one cannot think or speak
of a group of candidates obtaining an unfair advantage without inevitably
thinking
or speaking of each of the candidates making up the group. Similarly,
in the context of para (a) of subreg (2), it is impossible
to conceive or talk
of a group of candidates entering for an examination and having knowledge of the
contents of the question-paper
before the examination, without visualizing and
involving every individual member of the group. Notionally, absence of knowledge
on the part of a particular candidate must perforce exclude him from a group of
candidates having knowledge. Linguistically, this
is highlighted by the use in
para (a) of the words: "have become known to him
or them
"; one cannot
substitute "it" (denoting the
19 group) for "them" (the members of the
group). And in para (i), to prohibit a group of candidates from entering the
examination
room must mean to prohibit the individual candidates comprising the
group from entering; in para (ii), to refuse to recognise the
results obtained
by a group of candidates can mean nothing but to refuse to recognise the results
of the individual candidates in
a group; and in subreg (3) the concept of
requiring a group of candidates to rewrite an examination can only be applied to
the several
members of the group individually.
The observations above point to the conclusion that the expression "group of
candidates" was used in the regulations as a kind of
shorthand expression to
denote a number of individual candidates who together constitute a group by
reason of having some attribute
in common. In the opening words of subreg (2)
the common attribute is the
20
obtaining of an unfair advantage; in para (a) it is the prior knowledge of
the contents of a paper.
At this point the two propositions embraced in the argument for the
appellants, earlier marked (a) and (b) , converge. The connecting
link is the
idea, just mentioned, of an attribute common to the individual members of a
group of candidates. Proposition (a) denies
that such a common attribute is
required to constitute a group of candidates. It postulates that action can be
taken against individual
candidates who are innocent of any irregularity on the
ground that they belong to a group of which some members are proved to have
been
guilty of an irregularity. This involves much more than simply viewing a group
of candidates as a notional entity; it assigns
to the concept of an entity the
consequence that what affects some members of it, affects all; the guilt of some
taints the lot.
But it is
21 argued that this is not the right way to look at
the matter: the draftsman of the regulations was not concerned with guilt and
punishment (at least not in the context of subregs (2)(a), (2)(ii) and (3);
contrast subreg (2)(iii)); he was concerned with the
preservation of the
integrity of the examination system, in the manner explained earlier. It was
urged that effect should be given
to this object of the regulations by
interpreting them accordingly, even if the language chosen to express this
intention was less
than perfect. The answer to this line of the argument is to
be found by reverting to consider proposition (b) above, involving the
audi
principle. It rests on considerations of fundamental fairness and
the requirements of natural justice. In this context it does not
avail the
appellants to say that the object of the Director-General's action is to
preserve the integrity of the examination system
and
22
not to punish an innocent candidate. The prejudicial effect of his action on
the rights of an individual candidate is all that matters.
It entails the right
to be heard, which can be excluded only if the intention to do so is made
manifest. The appellants attempt to
find such an intention, in relation to
individual members of a group, in the expression "group of candidates". The
attempt must fail,
for, in view of what has been said above, it is impossible to
find in that expression an implication of a clear intention to exclude
the right
to be heard. Consequently proposition (b) must be rejected. The essence of a
candidate's right to be heard is the opportunity
to show that he is innocent of
any irregularity. That being so, it must follow that there is no room for
arguing that it is immaterial
whether any individual member of a group of
candidates is guilty or innocent of an irregularity.
23
Consequently proposition (a) must also be rejected.
Counsel for the appellants argued that, if the interpretation contended for
were not accepted, the expression "group of candidates"
in the regulations would
be rendered superfluous and, indeed, senseless. I do not agree. It fulfills a
useful function, as indicating
the manner in which the Director-General is to
exercise his powers in certain circumstances. If he receives information of an
irregularity
which may involve a number of candidates, he can examine the facts
to see whether a
prima facie
inference is justified that a number of
candidates have participated in the irregularity, thus sharing a common
attribute and constituting
a group of candidates. If he is satisfied on that
score, he is then empowered, before he forms the opinion required by subreg (2),
to call on the members of the group for an explanation. This he is
24
entitled to do, even though there is no evidence directly implicating each
individual in the group. In this respect the position differs
from the case
where he is concerned with a particular candidate only; there he would be able
to act only on evidence relating to
misconduct of that individual. An example of
a group situation is afforded by the facts of this case. Another would be where
all
the candi-dates in one class were to answer a particular ques-tion in
exactly the same way. In calling on the members of the group
to explain, the
Director-General would obviously be in duty bound to convey to them the
information on which he bases his inference
of group complicity. Each individual
will thus be afforded the opportunity of showing that he did not take part in
the irregularity,
that he did not in fact belong to the group, and so to make
representa-tions for excluding him from the group when the
25 requisite
opinion is formed. On this basis the words "group of candidates" cannot properly
be regarded as mere surplusage.
Finally, counsel for the appellants sought to rely on
Pretoria City
Council v Modimola
1966 (3) SA 250
(A) at 261E-262A and
E Snell & Co
(Transvaal) (Pty) Ltd v Minister of Agricultural Economics
1986 (3) SA 532
(D & C L D) at 536F-537E in support of an argument that the
audi
principle did not apply in this case, on the grounds that the decision which the
regulations empowered the Director-General to take
was not designed to deprive
individuals of their rights, but to enforce a policy of general application, and
that the Director-General
was consequently to be guided solely by what was best
for the community as a whole. The argument is not well-founded.
Modimola
's case
supra
was extensively discussed in a recent
decision of this Court, to which, surpri-
26
singly, neither counsel referred us:
South African
Roads Board v
Johannesburg City Council supra
. I do
not propose to analyse the judgment
in the latter
case (
per
MILNE JA) in any detail. It will suffice
to quote two of the general conclusions stated in the
judgment (at 12E-F and 13B-C):
"It seems to me rather that a distinction should be drawn between (a)
statutory powers which, when exercised, affect equally members
of the community
at large and (b) those which, while possibly also having a general impact, are
calculated to cause particular prejudice
to an individual or particular group of
individuals."
"For the
audi
principle applies where the authority exercising the
power is obliged to consider the particular circumstances of the individual
affected. Its application has a two-fold effect. It satisfies the individual's
desire to be heard before he is adversely affected;
and it provides an
opportunity for the repository of the power to acquire information which may be
pertinent to the just and proper
exercise of the power."
Applying this approach to the facts of the present
27
case, it is not open to doubt, I consider, that the Director-General was
obliged to give effect to the
audi
principle. It may be that in other
circumstances so large a number of candidates can be involved (as in some
examples given in argument,
where the contents of a paper is disseminated on a
wide scale) that the application of the
audi
principle must needs be
attenuated, but it was rightly not suggested that such a situation arose in the
present case.
The decision of the second appellant was invalid and the Court
a quo
was right in setting it aside.
The appeal is dismissed, with costs.
A S BOTHA JA
KUMLEBEN JA
GOLDSTONE JA CONCUR
NICHOLAS AJA
CONCUR
HARMS AJA