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[2026] ZAGPJHC 149
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Mwaba v University of Witwatersrand and Another (020428/2026) [2026] ZAGPJHC 149 (24 February 2026)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Case No: 020428/2026
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
(3) REVISED
In
the matter between:
CATHERINE
MWILA MWABA
Applicant
AND
THE
UNIVERSITY OF THE WITWATERSRAND
First Respondent
REGISTRAR OF THE
UNIVERSITY OF THE
WITWATERSRAND
Second Respondent
JUDGMENT
MIA
J
[1]
This is an urgent application in which the
applicant seeks to review and set aside the decision taken by the
University’s
Readmissions Committees refusing her permission to
renew her registration for the 2026 academic year in the program she
had undertaken,
Bachelor of Science. She seeks interim relief
permitting her registration pending the University’s
reconsideration as directed
by this court.
The application is
brought in terms of section 6 of the Promotion of Administrative
Justice Act 3 of 2000 (‘PAJA’).
The respondents oppose
the application on the grounds of lack of urgency citing that the
urgency is self-created, that the question
of readmission is moot and
the absence of a procedural irregularity warranting a review.
BACKGROUND
FACTS
[2]
The applicant is a student enrolled in the Faculty of Science for a
three-year Bachelor of Science degree which commenced
in 2022. The
requirements for completion of the degree required that the applicant
achieve 144 credits per year which would result
in a total of 432
credits upon completion of the programme. Whilst the degree is
usually completed in three years, the student
may complete the
programme requirements over a period of five years.
[3]
The Faculty of Science Undergraduate Student Information book
indicated students had to achieve 144 credits per year and
432
credits after three years to graduate with a Bachelor of Science
degree. The applicant enrolled for 8 subjects in 2022 and
obtained 72
of the 144 credits required. She had dropped four subjects and did
not meet the requirements to obtain a credit in
two courses. In 2023,
the applicant enrolled for six courses and achieved credits for five
courses and was permitted to proceed
into the next academic year. In
2024, the applicant enrolled for twelve courses and achieved credits
in four courses. The applicant
enrolled in 2025 to complete the eight
courses where credit was required. The applicant achieved credits in
five of the eight courses
carried over from 2024. The total credits
obtained at the end of 2025 were thus 264 out of the 432 credits
required to graduate
with a Bachelor of Science degree.
[4]
The applicant completed the first-year course requirements over two
years. The second-year course requirements were not
completed in the
following two years. This precluded the applicant from registering
for the third year according to the Faculty
of Science’s
progression rules. Of significance for the applicant is the Faculty
of Science’s requirement that a student
pass Linear Algebra II
and/or Mathematical Statistics II in the second year to progress to
the third year of Computer Science or
Computational Applications
course. The applicant has not met this requirement, and this appears
to bar the applicant from progressing
to the third-year academic
year.
[5]
The respondents indicate that the successful completion of the
courses is required as they are foundational to the eight
courses a
student would register for in the third year of Computational Science
or Computational Applications. In the absence of
progression in the
two third year options, the applicant could register for
Environmental Studies in the third year. This however
would not
ensure the applicant held sufficient credits in a second major which
is required to ensure the applicant can graduate
with a Bachelor of
Science degree in 2026, within the five years permitted to complete
the three-year degree.
[6]
On 12 January 2026, the Wits Readmissions Committee (WRC1) refused
permission for the applicant to renew her registration.
WRC1 refused
permission after considering the reasons the applicant submitted
through the online platform. Notwithstanding that
the applicant’s
appeal to be readmitted failed during the WRC1, students are
permitted to attend a further appeal in person
where they may make
oral representations and to consider any documents or issues not
brought to the attention of the readmissions
committee. This is by
way of in person attendance at WRC 2 following the online appeal. On
16 January 2026, the applicant was permitted
to address the WRC 2 in
person or represented by a member of the SRC. WRC2 dismissed her
appeal.
[7]
The applicant contends that the decision constitutes unlawful
administrative action and ought to be reviewed as the respondent
failed to follow the correct procedure in terms of its rules. The
respondents, on the other hand, maintain that the decisions were
taken in accordance with university rules and applicable legislation
governing higher education institutions.
[8]
The matter raises issues concerning:
8.1
Whether the matter is urgent;
8.2
Whether the decision constitutes administrative action under PAJA
and
is reviewable;
8.3
Whether the applicant was afforded procedural fairness;
8.4
Whether the decision was lawful, rational, and reasonable;
8.5
Whether there has been undue delay in bringing the review;
8.6
The appropriate remedy if review succeeds.
URGENCY
[9]
I deal with the question of urgency first. The registration for
students for the 2026 academic year opened on 20 January
2026 and
closed on 4 February 2026 when the academic year commenced. Without
an intervention the applicant may not register for
the 2026 academic
year. Whilst the delay is not significant, exclusion from the
academic year carries consequences that cannot
be easily remedied
retrospectively. The respondents contend that the applicant was aware
that she was at risk of academic exclusion
since December 2025. She
thus created her own urgency. Moreover, the university registration
for 2026 has closed and the university
is not able to accommodate
students after the close of the academic year. Considering the impact
of a lost year the matter is urgent.
The delay in launching this
application must be weighed against the granting of intrusive interim
relief.
ADMINISTRATIVE ACTION
UNDER PAJA
[10]
In
Hamata
v Chairperson, Peninsula Technikon Internal Disciplinary Committee
[1]
the Supreme Court of Appeal held that proceedings conducted by a
higher education institution constitutes the exercise of public
power
and are subject to constitutional scrutiny. The university’s
exercise of public power affecting students constitutes
an
administrative action and is reviewable under PAJA. In
Pharmaceutical
Manufacturers Association of SA: In re Ex parte President of the
RSA
[2]
the Constitutional Court held that all exercises of public power must
be rationally related to the purpose for which the power
was
conferred. Section 3(1) of PAJA requires administrative action which
materially and adversely affects rights to be procedurally
fair.
[11]
The review must be considered in the context of the university’s
recognised academic freedom and institutional
autonomy. Its decision
ought not be overridden except where the decision is unlawful,
irrational, or procedurally unfair. In the
present matter, it is thus
necessary to consider whether the respondent’s decision-making
process complied with the requirements
of procedural fairness.
PROCEDURAL FAIRNESS
[12]
The
applicant contends that the decision to exclude her is procedurally
unfair and unreasonable in view of her circumstances. The
respondent,
on the other hand, submits that the decision falls squarely within
its statutory powers and that the readmission committee
complied with
procedural requirements. In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[3]
the Constitutional Court explained that a review requires
consideration of the nature of the decision, the identity of the
decision-maker,
the expertise involved, and the range of factors
relevant to the decision.
[4]
[13]
In
determining procedural fairness, the court will ascertain whether the
applicant was informed of the possible adverse decision
and was
afforded a reasonable opportunity to make representations. The
fairness is context specific.
[5]
If the review is successful the default remedy is a remittal to the
decision maker. In
Trencon
Construction (Pty) Ltd v Industrial Development Corporation
[6]
the
Constitutional Court held that substitution is exceptional and
appropriate only where the court is in as good a position as
the
administrator to make the decision.
[7]
REASONABLENESS OF THE
DECISION
[14]
The applicant’s grounds for review centres on the complainant
that the university failed to properly exercise the
discretion
afforded by its rules and did not follow its own procedure and failed
to afford her an opportunity to make representations.
She maintains
that the rules permit her to renew her registration where she has not
achieved the minimum requirements subject to
the Senate’s
approval and conditions. In this regard, she envisages a specific
curriculum be prescribed to enable her to
complete her degree. This
requires the WRC decision be discretionary and flexible in
exceptional circumstances.
[15]
In the present matter, the applicant does not seek a substitution of
the respondent’s decision. She seeks an interim
order to
register and an order that the decision to exclude her remitted to
the respondent to consider the exceptional factors
she relies upon.
She argues that the WRC did not evaluate her circumstances fully as
her ‘exceptional’ circumstances
were not considered when
the WRC2 failed to consider the report of her psychologist. The WRC’s
thus failed to consider the
proximity to completing her degree and
only furnished certain reasons after the decision had been taken. She
maintains that if
the WRC’s exercise its discretion having
regard to her exceptional circumstances it may refer the decision to
the Senate
to permit her to register for a special curriculum with
conditions.
[16]
The respondent relies on the applicant’s academic history. She
accumulated 264 credits after registering for the
first and second
year of the Bachelor of Science degree. After four years in a
three-year programme, she had accumulated 264 credits
instead of the
required 432. She required 168 credits to accumulate the required 432
credits to graduate with a degree in the Faculty
of Science. Apart
from the credits required, she was required to successfully complete
certain foundational subjects before being
permitted to enrol for the
third-year course programme. If she registered in 2026, this would be
her fifth year in the Faculty
of Science, and she would have to
complete the required course programme. She would be required to
enrol for subjects which formed
her second major to graduate with the
degree she enrolled for. However, she has not completed two subjects
successfully to enable
her to register for third year subjects in
Computer Science or Computational Analysis. Thus, the applicant is
required to repeat
her second year both academically and practically.
The applicant did not contest these facts.
[17]
The second respondent excluded the applicant based on academic
performance having regard to the university’s
requirements. The applicant does not dispute the respondent’s
version in respect of the academic requirements. This review
thus
considers whether the Readmission Committees considered the
applicants academic record, permitted her the opportunity to make
representations accompanied by the supporting documentation before
coming to a final decision. The mere fact that a discretionary
power
exists does not oblige a decision-maker to grant relief requested.
Nor does it follow that refusal demonstrates a failure
to exercise
discretion. The decision must be rational, reasonable and lawful.
[18]
Whilst the applicant states that the respondent did not reply to
enquiries she made, it is not disputed that she was
aware that she
could make representations at WRC 2 and could submit documents she
relied upon. Upon considering the respondents
conduct around the
decision, the applicant was informed that she was at risk of
exclusion and advised to consider other institutions.
During the
sitting of the second readmissions committee, she was afforded the
opportunity to present further information. An independent
record of
the proceedings is not available to ascertain whether the applicant
was rebuffed and not permitted to place information
before the second
readmissions committee. In terms of a consideration that she be
afforded an opportunity to make submissions the
applicant was present
during the proceeding and on her version, she responded to questions.
The complaint regarding procedural
fairness must be mindful that
procedural fairness does not guarantee a favourable outcome, only a
fair process. On the papers,
that threshold has been met. The
respondents’ conduct is lawful to the extent that it acts in
accordance with the university
rules and applicable legislation
governing higher education institutions. When the respondents’
decision is considered having
regard to the applicants admissions
regarding the applicable it is evident that the respondent’s
version prevails in the
absence of an objective record. I am not
persuaded that the respondent did not act rationally and reasonably
or that they failed
to follow procedures which afforded the applicant
an opportunity to appeal their decision.
[19]
Even when considering the respondent’s reasons for the
exclusion, the applicant’s academic shortfall is not
marginal.
It relates not only to the gap between the credits achieved and those
required to graduate, but to the period within
which the degree is
required to be completed. The applicant requires special
accommodation, but it is not clear how it is anticipated
she be
accommodated in her particular circumstances which complies with the
university’s rules. Does the special accommodation
require an
extension of the five-year period permitted to complete the degree or
to be permitted to enrol for third year subjects
whilst completing
second year subjects. Without the prerequisite courses, it is
doubtful that she will complete the degree within
the reasonable time
frame permitted. That the readmissions committee did not have regard
to her health challenges does not suggest
a failure to follow the
appropriate procedure without due consideration of her circumstances.
The health challenges do not support
the view that the requirements
for completion of the degree will be met in terms of the rules.
[20]
The respondents contend that the relief sought is moot because
registration had closed before the application was issued.
Mootness
is not decisive as the court may still grant effective relief. It
does however underscore the practical difficulty of
compelling a
university to reopen academic processes after the commencement of the
academic year. The court will not usurp the
function of an
administrative agency. It is required only to ensure the decisions
taken such administrative agency falls within
the bounds of
reasonableness. This weighs heavily against granting interim relief
as sought.
[21]
Whilst accepting the seriousness of exclusion, the applicant has not
demonstrated a prima facie right to provisional
registration for
2026. To grant the relief will require this court to intrude into the
academic administration. This is a step
courts take only in the
clearest cases of unlawfulness and irrationality. This is not such a
case.
[22]
The applicant has not established that the decisions taken by the
respondents was unlawful, irrational or procedurally
unfair. The
issue as appears from the papers do not permit a conclusion that
there was administrative injustice. The academic performance
was
considered within a lawful institutional framework. Intervention in
such circumstances undermines the autonomy necessary for
universities
to maintain academic standards. The application must therefore fail.
[23]
The costs
in the present matter is informed by the decision in
Biowatch
Trust v Registrar, Genetic Resources
[8]
,
the applicant appeared in person to seek the opportunity to pursue
her education.
[24]
Consequently, I grant the following order:
ORDER:
The
application is heard as one of urgency.
The
application to review and set aside the decisions of the respondents
is dismissed.
The
application for interim relief permitting provisional registration
is dismissed.
There
shall be no order as to costs.
S
C MIA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances:
On behalf of the
applicant
: CATHERINE MWILA MWABA
Instructed
by
: IN PERSON
On behalf of the
respondent
: ADV M MUSANDIWA
Instructed
by
: MVT ATTORNEYS
Date of
hearing
: 13 February 2025
Date of
judgment
: 24 February 2025
[1]
(384/2000)
[2002] ZASCA 44
;
2002 (5) SA 449
(SCA);
2002 (7) BCLR 756
(SCA); (2002) 23 ILJ 1531 (SCA) (17 May 2002)
at
paras 11-2 and 19.
[2]
(CCT31/99)
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) (25 February 2000).
[3]
(CCT 27/03)
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004
(7) BCLR 687
(CC) (12 March 2004).
[4]
The Court said in Bato Star above n 2 at para 45:
“
[45]
What
will constitute a reasonable decision will depend on the
circumstances of each case, much as what will constitute a
fair procedure
will depend on the circumstances of each case.
Factors relevant to determining whether a decision is reasonable or
not will include
the nature of the decision, the identity and
expertise of the decision-maker, the range of factors relevant to
the decision,
the reasons given for the decision, the nature of the
competing interests involved and the impact of the
decision
on the lives and well-being of those affected. Although the
review functions of the Court now have a substantive as well as a
procedural ingredient, the distinction between appeals and reviews
continues to be significant. The Court should take care not
to usurp
the functions of administrative agencies. Its task is to ensure that
the decisions taken by administrative agencies
fall within the
bounds of reasonableness as required by the Constitution.”
[5]
See
Hamata
above n 1 at para 12-3 and 21.
[6]
(CCT198/14)
[2015] ZACC 22
;
2015 (5) SA 245
(CC);
2015 (10) BCLR 1199
(CC) (26
June 2015) at paras 47-55.
[7]
Ibid.
[8]
(CCT
80/08)
[2009] ZACC 14
;
2009 (6) SA 232
(CC) ;
2009 (10) BCLR 1014
(CC) (3 June 2009).