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[2026] ZAGPJHC 553
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Tyumere v University of the Witwatersrand (2026/047627) [2026] ZAGPJHC 553 (14 May 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number: 2026/047627
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES / NO
(3)
REVISED: YES / NO
[ ] May 2026
In
the matter between:
THANDUXOLO
TYUMERE
Applicant
and
THE
UNIVERSITY OF THE
WITWATERSRAND
Respondent
JUDGMENT
MYBURGH, AJ
Introduction
1.
The applicant, Mr Tyumere was registered as a final year
medical student with the respondent (“the university”)
during
the 2025 academic year
.
2.
One of the course requirements required Mr Tyumere to submit
an assignment, which he did early in July of that year. That
assignment
initially scored a mark of 48%. However, Mr Tyumere
was later informed that the assignment had been reviewed and that the
“objective” (which I understand to mean the subject of
the assignment) had been rejected this for reasons that I do
not
consider necessary to canvass. Mr Tyumere was invited to re-submit.
That was on 13 November
.
3.
Mr Tyumere re-submitted his assignment, which I understand to
have been a revised version of his original submission, on 19
November.
That resubmission was also rejected. In addition, it was
considered non-compliant on account of his alleged failure to include
a “Turnitin” report, which, according to the evidence, is
an AI-generated report that is aimed at identifying instances
of
plagiarism.
4.
On 20 November, Mr Tyumere had an in-person meeting with the
course coordinator, Professor Saloojee, who maintained the position
that the assignment had been rejected for the reason set out above –
i.e. the objectives were rejected. The result or implication
was that
Mr Tyumere was considered to have failed the assignment. The further
implications were that he would not, in terms of
the rules applicable
to the course, be permitted to write what was referred to in the
papers as the “IPC” exam and
would therefore not be able
to graduate at the end of that year. Prof Saloojee confirmed his
position in an email to Mr Tyumere
the following day, although
nothing turns on that.
5.
Mr Tyumere responded by raising a formal grievance.
6.
On 26 November, Mr Tyumere received an email from the
assistant dean of the faculty in which he was informed that he would
be permitted
to sit the IPC exam but that his results would be
withheld pending the outcome of a review of the “satisfactory
performance”
criterion by the academic misconduct committee.
7.
Mr Tyumere duly sat the exam, and his marks
were withheld per the communication referred to above.
8.
On 4 December, Mr Tyumere met with the
student academic misconduct committee. According to his evidence, the
purpose of that meeting
was to rebut the allegations of plagiarism
and the citation of a non-existent source that had been made against
him by Prof Saloojee.
9.
On 21 December, Mr Tyumere addressed an
email to the committee in which he enquired regarding the outcome of
his grievance and requested
the release of his exam results.
10.
That communication prompted a response from
a member of the committee, Prof Behrens in which he was informed that
the committee
had found numerous discrepancies between sources and
the content of his assignment, and that the matter had consequently
been referred
to the university’s legal office. That was also
on 21 December.
11.
On 9 January this year, Mr Tyumere’s
attorney addressed a letter to the university in which he demanded
the reinstatement
of the original assignment mark of 48% and the
release of Mr Tyumere’s exam mark.
12.
On 13 January, the university’s legal
office addressed a letter to Mr Tyumere’s attorney in which he
was advised that
a decision as to whether to charge Mr Tyumere with
misconduct had not yet been made and that the matter was still under
consideration.
13.
That communication was followed by a
further letter of 17 January in which the university essentially took
issue with the contents
of Mr Tyumere’s attorney’s letter
and rejected the demands made therein.
14.
Some further correspondence ensued. The
contents are not of importance. Suffice it to say that the parties
adhered to their respective
positions.
15.
Mr Tyumere and his attorney also met a
representative or representatives of the university’s legal
office. It appears that
Mr Tyumere complained about the delay in
finalising the complaint against him and contended that he was being
prejudiced. However,
he did not insist on having the matter brought
to a head without further delay, but instead persisted in his demands
– namely,
that his original assignment mark be reinstated and
that his examination mark be released. No resolution was
reached. That
was on or about 13 February.
16.
On 15 January, Mr Tyumere’s attorney
addressed a further letter to the university in which he reiterated
Mr Tyumere’s
previous demands.
17.
That letter was responded to by way of a
letter from the university’s attorneys. The letter was quite
lengthy, but it would
serve no purpose to traverse its content on any
detail. Suffice to say that Mr Tyumere’s demands were rejected.
That was
on 20 February.
18.
Mr Tyumere launched the present application
on an urgent basis, on 27 February and sought the following
substantive relief –
(a)
that the respondent be compelled and
directed to release the applicant’s Integrated Primary Care
examination results;
(b)
that the respondent be interdicted from
conducting any disciplinary proceedings in respect of the
Evidence-Based Medicine (“EBM”)
assignment; and
(c)
that the applicant’s initial EBM
assignment mark of 48% be reinstated.
19.
The university was given until 4 March to
deliver its answering papers, and the matter was enrolled for hearing
in the week of 10
March.
20.
I will deal with the contents of Mr
Tyumere’s founding affidavit at an appropriate juncture.
21.
Following receipt of the application, the
university commenced disciplinary proceedings against Mr Tyumere.
22.
In its answering affidavit the university
took issue both in relation to the alleged urgency of the matter and
in relation to the
merits.
23.
I will deal with the issues in that order.
Urgency
24.
Mr Tyumere’s case rested on the fact
that he had received an offer of employment that he was required to
take up by 1 April
this year, for which purpose he was required to
have the necessary qualifications – i.e. a degree in medicine.
25.
I find it difficult to understand how that
fact could, in and of itself, serve to render the matter urgent.
After all, one would
think that Mr Tyumere’s intention had at
all relevant times been to obtain employment as an intern once he had
completed
his degree. Indeed, experience and common sense suggest
that he would have been seeking opportunities and making applications
in
the course of his final year, and that he would, if sufficiently
fortunate, have obtained such employment subject to him passing.
Mr
Tyumere also knew for several months prior to launching the
application that his fate was in jeopardy and that his exam marks
would not be released unless and until he was cleared of the
allegations that had been levelled at him by Prof Saloojee.
26.
To this I would add that if his true
complaint was that the university was dragging its heels in reaching
a decision as to whether
or not to charge him, then the appropriate
remedy would have been to have sought an order compelling the
university to either proceed
with the charge within a stipulated
period or to regard the complaint as having been without merit. That
he could have done in
the latter part of last year.
27.
I am accordingly of the view that Mr
Tyumere failed to make out a case for the degree of urgency contended
for. In my view, the
urgency was, at least to a large extent,
self-created.
28.
That said, I permitted argument on the
merits and have reached a view. That being the case, I believe
that it would constitute
a waste of judicial resources if I were, in
the circumstances, to strike the matter from the roll, thereby
leaving it open to Mr
Tyumere to re-enrol the matter.
The merits
29.
In
its answering papers, the university contended that Mr Tyumere had
failed to make out a case for the relief sought. In that regard,
it
contended that courts will only grant interdictory relief of the kind
sought, in exceptional cases, and that Mr Tyumere had
failed to
allege or prove the existence of circumstances so exceptional as to
warrant the court’s intervention. The university
also took
issue with the proposition that the mark allocated was not
susceptible of review once it had been published. In addition,
it
contended that the proceedings had not been properly brought in that
Mr Tyumere’s complaint ought properly to have been
prosecuted
by way of a review in terms of PAJA.
[1]
30.
I
think it appropriate, before embarking on an analysis of the merits,
to say something about the law – an aspect in which
I found Mr
Tyumere’s case to be lacking. I can do no better in this regard
than to refer to the judgment of the Supreme Court
of Appeal (“SCA”)
in
Dyantyi
v Rhodes University and Others
.
[2]
The
relevant portions of that judgment read as follows:
“
[19]
As a public higher education institution, the university is publicly
funded for the purpose of achieving
the obligation of the state under
s 29(1)(a) of the Constitution to make the right to higher education
progressively available
and accessible. It follows that the
university is an organ of state as defined in s 239 of the
Constitution and thus in s 1 of
the Promotion of Administrative
Justice Act 3 of 2000 (PAJA). In terms of s 27(1) of the Higher
Education Act, the university is
governed by its council. Section
32(2)(d), inter alia, provides that the council may make
institutional rules regarding disciplinary
measures and disciplinary
procedures relating to students. In terms of s 36, every student at a
public higher education institution
is subject to the disciplinary
measures and disciplinary procedures determined by its institutional
rules. The council of the university
approved and the university
applied the disciplinary code under these empowering provisions.
[20]
Therefore, in subjecting Ms Dyantyi to a disciplinary inquiry, the
university exercised a public power
and/or performed a public
function in terms of legislation, within the meaning of the
definition of ‘administrative action’
in s 1 of PAJA. The
decisions clearly affected Ms Dyantyi’s rights adversely by
direct external legal effect. It follows
that PAJA was applicable and
that Ms Dyantyi had the right to procedural fairness encapsulated in
s 3 of PAJA.”
31.
On my understanding, it follows that Mr
Tyumere’s proper remedy, if he was dissatisfied with any
decision made by the university,
was to institute review proceedings
in terms of PAJA. Why that was not considered appropriate was not
addressed in his founding
papers , which were silent on the
issue. As PAJA was not relied upon, the only alternative, as I
understand the position,
would be a review based purely on legality –
although that was not specifically alleged.
32.
On either basis, I have to confess to
having serious difficulty with the proposition that relief in the
form of a review could be
competent in respect of what was described
as a “non-decision” – i.e., as to whether or not to
charge Mr Tyumere
with misconduct; however I will say no more in that
regard and will instead proceed on the assumption that such a
“non-decision”
can validly form the subject of a review.
33.
As appears from what I have already said,
Mr Tyumere’s case in that regard seemed to rest on the
proposition that the
university had unreasonably dragged its heels on
that issue, thereby causing him prejudice. I have several
difficulties with that
thesis. In the first instance, it was not
alleged that the university was required to make a decision on the
issue within any stipulated
period. Nor did Mr Tyumere allege what
would have constituted a reasonable period, or when such period would
have expired. The
university was also never placed on terms. On the
contrary, the issue was first raised by way of an assertion which, in
reality,
amounted to the contention that a reasonable time had passed
and that the university was consequently barred from charging Mr
Tyumere
on account of alleged prejudice. Precisely what the alleged
prejudice comprised was never addressed – neither in the
correspondence
nor in Mr Tyumere’s papers. In particular, none
of the usual grounds associated with prejudice arising from delay
were mentioned
– for example, that witnesses had died or that
evidence was no longer available.
34.
Added to that, the issue had become moot by
the time the matter came before me, given the university’s
decision to institute
disciplinary proceedings against Mr Tyumere.
35.
I am accordingly of the view that the
review portion of the application must fail.
36.
Turning to the prayer for interdictory
relief, the starting point would be the establishment of a right –
which, given the
nature of the relief sought (i.e., a final
interdict), would have to have been a clear right, as opposed to what
is often referred
to as a
prima facie
right. The authorities are so well known that it is not necessary to
cite any of them.
37.
I could not discern the nature of the right
contended for. That said, the only right that could conceivably arise
is the right to
just and fair administrative action. Mr Tyumere
would also, in the context of the disciplinary proceedings, enjoy the
usual
rights that apply to accused persons in the context of
quasi-judicial proceedings. I will not say anything further in that
regard,
given that it was not asserted that the tribunal would not
respect or afford him those rights.
38.
In my view, Mr Tyumere’s case in
respect of his claim for interdictory relief also stumbles at another
hurdle. That is that
he does indeed have a satisfactory alternative
remedy, viz. to put his case forward in the course of the enquiry. If
he is dissatisfied
with the outcome of those proceedings (which is
not to be assumed), then his remedy will be to seek a review.
39.
In
closing, I believe it appropriate to mention that the jurisdiction of
our courts in relation to matters of this nature is essentially
that
of review. Thus, our courts will not, by way of an interdict, direct
an administrative or quasi-judicial body to exercise
the powers
vested in it in a particular way. An order of the kind sought by Mr
Tyumere (i.e., prohibiting the holding of a disciplinary
enquiry)
will, by the same token, not be made save in very exceptional
circumstances
[3]
– the existence of which were not even alleged, much less
established.
40.
I accordingly make the following order:
1. The application is
dismissed with costs, costs of counsel to be taxable according to
scale B.
G S Myburgh
Acting Judge of the
High Court
Gauteng Division
Johannesburg
Appearances
For the
Applicant:
M. Mfeka
Instructed
by:
Mogashoa Attorneys
For the Respondent:
M. Sibanda
Instructed
by:
Edward Nathan
Sonnenbergs Inc.
Date of
Hearing:
12 March 2026
Date of
Delivery:
[ ] May 2026
[1]
Promotion
of Administrative Justice Act 3 of 2000
.
[2]
[2022]
ZASCA 32;
2023 (1) SA 32 (SCA).
[3]
In
this regard see
Nkhutha
and others v University of Johannesburg
[2025]
ZAGPJHC 1056.