Brief Summary

Constitutional Law — Right to education — Admission policy — Review of university decision — Applicant's unsuccessful application for admission to MBChB programme — University’s admission policy applied correctly — Costs orders set aside based on Biowatch principle. Applicant, Niekara Harrielall, contested her non-admission to the University of KwaZulu-Natal’s MBChB programme, arguing that the University failed to apply its own admission policy. The High Court dismissed her application with costs, which was upheld by the Supreme Court of Appeal. The Constitutional Court found that the admission policy was properly applied and upheld the appeal on costs, setting aside the previous costs orders, emphasizing the Biowatch principle that protects unsuccessful litigants in constitutional matters from adverse costs orders against the State.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an application for leave to appeal to the Constitutional Court against an order of the Supreme Court of Appeal dismissing an appeal with costs. The applicant was Ms Niekara Harrielall, a student at the University of KwaZulu-Natal (the respondent).

The litigation arose from the University’s refusal to admit the applicant to the MBChB programme for the 2016 intake. After being unsuccessful in securing admission, the applicant instituted a review application in the KwaZulu-Natal Division of the High Court seeking to set aside the University’s admission decision. The High Court dismissed the review application with costs. The High Court nonetheless granted leave to appeal, but the Supreme Court of Appeal dismissed the appeal with costs.

In the Constitutional Court, the applicant sought leave to appeal against the Supreme Court of Appeal’s order. The Chief Justice issued directions calling for written submissions on whether, in relation to costs, the High Court and the Supreme Court of Appeal ought to have applied the Biowatch principle. The matter was determined without oral argument.

The general subject-matter of the dispute was the lawfulness and fairness of an admission decision taken under a university’s admission policy, and (in the Constitutional Court in particular) the proper approach to costs in constitutional litigation involving an organ of State, including litigation implicating administrative justice and access to further education.

2. Material Facts

In 2015 the applicant applied for admission to the University’s MBChB degree. Her application was unsuccessful. In an effort to improve her prospects, she registered for and completed a year of study in the Bachelor of Medical Science (Anatomy) at the same University.

When applications for the 2016 intake opened, the applicant applied again for admission to the MBChB programme under the University’s admission policy category for “mature students”. The policy provided that mature students would comprise 20% (40 students) of the class and created three subcategories, including category (a), described as an “open competitive category”, for candidates who had completed matric, exceeded minimum standards for entry into the MBChB programme, had completed a year or more of a degree at a recognised South African university, and achieved outstanding results. Category (a) accounted for 25% (10 students) of the mature student intake.

It was common cause that the applicant’s application fell to be assessed under category (a). For the 2016 intake in that category, there were 161 candidates competing for 10 places, including candidates who had completed degree courses. The applicant was not selected.

The applicant then launched review proceedings in the High Court. The basis of her complaint, as presented to the reviewing court, was that the University had failed to consider and apply its own admission policy in refusing her admission to the MBChB programme.

The University opposed the review, maintaining that the applicant’s application had been considered with the other applicants in the category and that selection occurred by reference to merit as reflected by academic qualifications and corresponding points. Those with completed degrees scored higher points and filled the available places, and all undergraduates in that category, including the applicant, were unsuccessful.

The High Court dismissed the review application, holding that the applicant had failed to show that the policy was not applied. The High Court made an order for costs against the applicant. The Supreme Court of Appeal dismissed the applicant’s appeal and also ordered her to pay costs.

3. Legal Issues

The central questions before the Constitutional Court were whether leave to appeal should be granted on the merits of the admissions review, and, separately, whether leave should be granted and the appeal upheld in respect of the costs orders made by the High Court and the Supreme Court of Appeal.

On the merits, the dispute turned on the application of the University’s admissions policy to the facts, namely whether the policy had in fact been applied and whether the applicant’s non-selection resulted from a failure to apply the policy (as she contended) or from a competitive process correctly conducted under that policy (as the University contended).

On costs, the dispute raised a question of law and legal characterisation, namely whether the litigation was a constitutional matter implicating the Biowatch principle, and if so whether either of the recognised exceptions to that principle justified adverse costs orders against the applicant. This required determining whether a PAJA review of a university admission decision and the underlying claim related to access to further education engaged constitutional rights and obligations such that the protective costs rule should have been applied.

4. Court’s Reasoning

On the merits, the Court concluded that the application for leave to appeal lacked prospects of success. It considered it apparent that the University’s relevant admissions policy was applied to the applicant’s request for admission. The applicant was unsuccessful because she was competing against candidates who were more qualified and who scored more points in accordance with the policy’s merit-based assessment. The Court noted that the validity of the admissions policy itself was not challenged in the proceedings, and the outcome reflected a proper and fair application of that policy in a context of limited places and high competition.

The Court’s focus therefore shifted to costs. It held that the High Court and Supreme Court of Appeal were not entitled to depart from the Biowatch principle. The Court observed that the High Court did not refer to Biowatch and appeared to have applied the ordinary approach that costs follow the result. The Court reiterated that Biowatch laid down a general rule for costs in constitutional matters involving the State, designed to prevent the chilling effect that adverse costs orders can have on litigants seeking to assert constitutional rights.

The Court emphasised that Biowatch does not immunise litigants who bring frivolous or vexatious proceedings, nor does it protect litigants whose conduct in litigation warrants censure. It referred to the articulation of exceptions in Affordable Medicines Trust v Minister of Health and to this Court’s more recent explanations of what constitutes frivolous or vexatious litigation, as set out in Lawyers for Human Rights v Minister in the Presidency, including reference to the definition in Bisset. Absent such exceptions, Biowatch must be applied, and a failure to do so amounts to the application of an incorrect principle in the exercise of a costs discretion, justifying appellate interference.

Applying these principles, the Court reasoned that it could not be disputed that the University is an organ of State, functioning as a public institution through which the State discharges its constitutional obligation to make access to further education progressively available and accessible. The Court referred to Hotz v University of Cape Town, where costs orders against students were overturned and the general constitutional litigation costs rule was reaffirmed in the university context.

The Court rejected the Supreme Court of Appeal’s reasoning that Biowatch did not apply because no constitutional issues were implicated and the matter was simply a PAJA review. It held that constitutional issues were implicated in two distinct respects. First, a review under PAJA constitutes a constitutional issue because PAJA was enacted to give effect to the administrative justice rights in section 33 of the Constitution, and the University’s decision involved the exercise of public power. In this regard, the Court relied on this Court’s constitutionalisation of public power review as explained in Pharmaceutical Manufacturers Association of South Africa: In re Ex parte President of the Republic of South Africa.

Second, the Court held that the applicant’s attempt to gain admission to the MBChB programme engaged the right of access to further education in section 29(1)(b) of the Constitution. While that section does not guarantee a right to pursue studies of one’s own choice, a decision that prevents a person from pursuing a chosen course implicates the right of access to education. The Court stated that the fact that the applicant had been admitted into another programme did not alter that her access to the relevant institution and programme was limited.

On this basis, the Court concluded that the High Court and Supreme Court of Appeal ought to have applied Biowatch when determining costs, and their failure to do so warranted intervention.

5. Outcome and Relief

The Court refused leave to appeal on the merits of the admissions dispute.

The Court granted leave to appeal on the issue of costs and upheld the appeal to that extent. It set aside the costs orders made by the High Court and the Supreme Court of Appeal.

The Court made no order as to costs in relation to proceedings in the Constitutional Court.

Cases Cited

Biowatch Trust v Registrar, Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC).

Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC).

Lawyers for Human Rights v Minister of Home Affairs (CCT38/16) 2017 ZACC 22; 2017 (5) SA 480 (CC); 2017 (10) BCLR 1242 (CC).

Lawyers for Human Rights v Minister in the Presidency [2016] ZACC 45; 2017 (1) SA 645 (CC); 2017 (4) BCLR 445 (CC).

Hotz v University of Cape Town [2017] ZACC 10; 2017 (7) BCLR 815 (CC).

Harriellal v University of KwaZulu-Natal (493/2016) [2017] ZASCA 25.

Pharmaceutical Manufacturers Association of South Africa: In re Ex parte President of the Republic of South Africa [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 29(1) and 33).

Promotion of Administrative Justice Act 3 of 2000.

Higher Education Act (as referenced in Hotz v University of Cape Town).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Constitutional Court held that the applicant’s proposed appeal on the merits of the admissions decision had no prospects of success because the University’s admissions policy was applied and the applicant was not selected due to the relative strength of other candidates’ qualifications in a highly competitive process.

The Court further held that the High Court and Supreme Court of Appeal ought to have applied the Biowatch principle when deciding costs because the matter implicated constitutional issues, including a PAJA review (as an incident of section 33) and the right of access to further education in section 29(1)(b), and because the respondent university is an organ of State. The failure to apply Biowatch justified setting aside the adverse costs orders.

LEGAL PRINCIPLES

The Biowatch principle establishes that in constitutional litigation against the State (including organs of State), the general rule is that an unsuccessful litigant should not be ordered to pay the State’s costs, in order to avoid a chilling effect on the assertion of constitutional rights.

The Biowatch protection is not absolute. Courts may depart from it where the litigation is frivolous or vexatious, or where the litigant’s conduct warrants censure, as recognised in Affordable Medicines Trust v Minister of Health and elaborated in subsequent Constitutional Court jurisprudence.

A review under the Promotion of Administrative Justice Act 3 of 2000 constitutes a constitutional issue because PAJA gives effect to the right to lawful, reasonable, and procedurally fair administrative action in section 33 of the Constitution, and the exercise of public power is controlled by the Constitution and legislation enacted under it.

Decisions affecting access to specific programmes in higher education may implicate the right of access to further education in section 29(1)(b) of the Constitution, even though that provision does not guarantee a right to undertake studies of one’s own choice.

Harrielall v University of KwaZulu-Natal (CCT100/17) [2017] ZACC 38; 2018 (1) BCLR 12 (CC) (31 October 2017)