IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO:2025-233328
In the matter between:
PHOLANI BANDLA APPLICANT
and
WALTER SISULU UNIVERSITY 1ST RESPONDENT
REGISTRAR FOR WALTER SISULU UNIVERSITY 2ND RESPONDENT
THE DEAN FOR THE FACULTY OF LAW
& HUMANITIES 3RD
RESPONDENT
THE HEAD OF DEPARTMENT FOR
FACULTY OF LAW 4 TH
RESPONDENT
DR MPOFU FACULTY OF LAW, HUMANITIES &
SOCIAL SCIENCES WALTER SISULU UNIVERSITY 5 TH
RESPONDENT
THE HEAD OF EXAMINATION FOR
WALTER SISULU UNIVERSITY 6 TH
RESPONDENT
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives via e-mail. The date and time for hand -
down is deemed 09h30 11 February 2026.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
MJALI J
1. The applicants in this matter are final year LLB students at the respondent
University who are aggrieved by the marks allocated to them in respect of
the Legal Research Methods Module. They allege that they were not
allocated an additional “five percent” attendance marks when th eir papers
were assessed. They approached this court on urgency basis on 28
November 2025 seeking an interim interdict pending the determination of a
contemplated review. The notice of motion contemplated a hearing of the
interim order application on 9 Dec ember 2025 but for reasons which do not
concern this judgment, the matter was only heard on 23 December 2025. At
the hearing the applicant’s counsel requested to file further written argument
in substantiation of the applicant’s case. Such heads were filed on 29
December 2025 and the respondent’s heads filed on 20 January 2026.
2. The order sought by the applicants in the interim application was couched in
the following terms.
2.1. That a rule nisi returnable on 20 January 2026 be issued, calling upon
the respondents to show cause as to why their decision or failure to
allocate the five percent attendance mark to the applicants’ Legal
Research Methods Module should not be reviewed and set aside.
2.2. That the third to the fifth respondents be directed to do a regrade and
allocate the five percent attendance marks to the applicants in respect
of their Legal Research Method Module.
2.3. That the third to the fifth respondents be directed to do the necessary
so as to give effect to the allocation of the five percent mark incl uding
but not limited to giving written authorization for the allocation of the
marks and the opening of the computer system so as to allow the
registration of the aforesaid marks.
2.4. That the respondents be directed to effect a change on the applicant’s
academic records in respect of the Legal Research Methods Module to
reflect 50% in respect of the first applicant and 51% in respect of the
second applicant.
2.5. In the alternative, that the respondents be ordered to make a
consideration for the discretiona ry marks adjustments and to amongst
others issue the requisite management report, award discretionary
marks to the applicants and update their academic records to reflect
the change.
2.6. that the respondents are directed to subject the applicants’ Legal
Research Methods work to review by a different person so that
relevant overall performance marks can be issued.
2.7. That the applicants are granted leave to specially re -submit the Legal
Research Methods Module and the first respondent’s officials be
directed to specially consider and mark the resubmitted research and
allocate marks de novo.
2.8. That the respondents pay costs of this application on scale C including
costs consequent upon the employment of two counsel only in the
event of opposition.
3. As I understand, the applicant’s case is premised on the complaint that they
were denied an additional five percent attendance marks when their papers
were assessed in respect of the Legal Research Method Module. The orders
sought are to compel the respondents to al locate those marks and update
their academic records to reflect the change following the allocated five
percent attendance marks.
4. The application is opposed on the grounds that there is no urgency and that
the application lacks merit.
5. I deal first with the issue of urgency. In paragraph 89 of their founding
affidavit the applicants gave the following reasons as motivation for the
hearing of this matter out of turn, namely,
5.2. that they seek to protect their constitutional right to education.
5.3. that there was a looming closure of the institution on 15 December
2025 for holidays and that the task of conducting a regrade requires
the presence of the official who are about to go on holidays. Should
the officials leave, they will be left without options.
5.4. The academic year 2026 is fast approaching and the Law School will
be open in the first if not the second week of the year 2026.
5.5. Should the issue not be resolved urgently, we will miss the resolution
of our dispute in the 2025 academic year and further miss the January
2026 Law attendance. This will occasion untold prejudice to us
including delay in our academic progress and future.
5.6. Additionally, successful final year students will graduate during the
May 2026 graduation stint.
5.7. Were the m atter not be treated as one of urgency and should we be
required to afford the respondents more time, by the time the matter is
heard, huge and irreparable harm will have occurred as we would
have been recorded as having failed with the consequence that we will
not be eligible for Law School and the aforesaid graduation.
6. In a nutshell the reasons advanced for the hearing of the matter on an urgent
basis were that the applicants would be prejudiced should the application not
be heard on an urgent basis. One of the reasons advanced for the urgent hearing
was the looming closure of the respondent institution on 15 December 2025
and the fact that the officials would then go on holiday. At the time of the
hearing of this matter on 23 December 2025, th e respondent institution had
already closed. As such the relief sought could no longer be implemented.
Apart from that, the applicants failed to make out a case for the urgency of this
matter. The long history of this matter as laid out in the applicants’ founding
affidavit clearly shows that the disagreement between the applicants and the
respondents regarding their final marks was long standing and the final
decision was made very clear them as early as 13 October 2025. They only
approached this court on 28 November 2025. I am inclined to agree with the
respondents that if any, the urgency in this matter was self -created. For this
reason, the application fell to be struck off the roll.
7. Even if I am wrong on the issue of urgency, this application fails t o meet the
requirements for the granting of an interim interdict. The established
requirements for the granting of an interim interdict are:
7.2. a prima facie right.
7.3. a well-grounded apprehension of irreparable harm if interim relief is
not granted.
7.4. a balance of convenience in favour of granting interim relief; and
7.5. The absence of any other satisfactory remedy.
8. The case for the applicants is premised on the alleged failure to add a 5 percent
mark to their final mark. They do not challenge the validity of the final marks
they obtained. They also accept that they did not attain the required pass mark.
Their only contention is that the addition of the 5 percent attendance mark
would result in them obtaining a pass mark. In their answering affidavit, the
respondents explain that the addition of that mark is discretionary and that the
final marks allocated to the applicants already include the 5 percent. Further
that the applicants do not make out a case for the further consideration of their
marks which can only be sanctioned by the senate. As such they fail to prove a
prima facie right to the relief sought.
9. The argument made by the applicants that their right to education which is
enshrined in the Constitution is denied if a reassessment and addition of the 5
percent attendance marks is not done, equally falls flat. Save for the mere
allegation of the denial of their Constitutional right to education, nowhere do
the applicants make a case to prove such denial. In fact, on their very own case,
the applicants were registered students at the respondent institution. They were
provided with an opportunity to study. They failed to obtain a pass mark even
after some discretionary marks were allocated to them. Bearing all the
aforesaid, the applicants failed to establi sh a prima facie right to the relief they
were seeking and this meant that the application fell to be dismissed on this
ground too.
10. The applicants change of tech in their replying affidavit that their papers were
not referred for external moderation as provided for in the respondent’s
examination policy, equally failed to come to their rescue. The trite rule is that
an applicant must s tand and fall by his founding affidavit and the facts alleged
therein. An applicant cannot make out a new case in the replying affidavit.
11. Given the fact that an interim interdict is an exceptional remedy which is
available before the rights of the partie s are fully determined, it should
therefore be granted with caution and only if a proper case is made out (see
Memory Institute SA CC t/a SA Memory Institute v Hansen and others 2004
(2) SA 630 (SCA) at paragraph 10).The court granting this discretionary relief
must properly place on the judicial scale all the legal requirements of an
interdict.
12. In this matter the applicants have failed to establish a prima facie right for
purposes of an interim interdict. This therefore spells the end of the matter. In
the view that I take it is not necessary to consider the matter further.
13. That brings me to the issue of costs. The general rule is that costs follow the
event. There is no reason for deviation from the general rule. In the result the
following order shall issue.
The application for an interim interdict is dismissed with costs.
________________________
G.N.Z. MJALI
JUDGE OF THE HIGH COURT
APPEARANCES:
For the applicant: Adv. L. Matotie
Instructed by: SR Mhlawuli & Associates
No. 58 Wesley Street
Mthatha
Email: srmhlawuli@gmail.com
For the respondents: Adv. J. Hobbs
Instructed by: Drake Flemmer & Osmond (EL) Inc.
No. 14 Durham Street
Mthatha
Email: angus@drakefo.co.za