Court name
High Court of eSwatini
Case number
Civil Case 2121 of 2003

Mushala and Another v Vice Chancellor of the University of Swaziland (Civil Case 2121 of 2003) [2003] SZHC 95 (15 October 2003);

Law report citations
Media neutral citation
[2003] SZHC 95
Coram
Maphalala, J









1


THE
HIGH COURT OF SWAZILAND


SIIMA
LEONA MUSHALA


1st
Applicant


PATIENCE
BONISIWE VILANE


2nd
Applicant


And


THE
VICE CHANCELLOR OF THE UNIVERSITY OF SWAZILAND


Respondent


Civil
Case No. 2121/2003


Coram S.B.
MAPHALALA - J


For
the Applicant MR. P. SHILUBANE


For
the Respondent MR. MAGAGULA


JUDGEMENT


(15/10/2003)


Serving
before the court is an application brought under a certificate of
urgency for an order as follows:


1. Waiving
the time limits and the forms of service prescribed by the rules of
court and hearing this matter urgently.


2. A
rule nisi be and is hereby granted calling upon the Respondent to
show cause on a date to be determined by the above Honourable Court
why:


2


2.1. the
decision by the Senate of the University of Swaziland dated 19th June
2003 in terms of which the Applicants failed and were discontinued
from pursuing a Master Degree in Environmental Sciences at the
University of Swaziland should not be reviewed, set aside and/or
corrected.


3. That
the order in paragraph 2.1 above operates with immediate effect as an
interim order pending the return date.


4. Calling
upon the Respondent to dispatch within 14 days of receipt of this
notice of motion, the record such proceedings sought to be corrected,
reviewed and/or set aside with reasons as she by law if required to
make and to notify Applicants that he has done so.


5. Costs
of the application.


6. Alternative
relief.


The
founding affidavit of both Applicants is filed thereto.


The
affidavit reveals that both Applicants were students at the
University of Swaziland having enrolled during October 2002, for a
Master's Degree in Environmental Science. The Respondent is the Vice
Chancellor of the University of Swaziland who is sued herein in her
capacity as Chairperson of the Senate of University of Swaziland,
(Kwaluseni, Swaziland)


During
October 2002 both Applicants enrolled for a Master's Degree in
Environmental Science with the University of Swaziland. On the 19th
June 2003, they received their results which were approved by the
Senate of the University at a meeting held on the 18th June 2003,
with the result "fail and discontinue".


They
immediately filed an appeal against the results in a letter directed
to the Registrar dated the 3rd July 2003, (annexure "SCM3").


The
letter reads in extenso as follows:


Box
5323 Manzini


3
July 2003 The Registrar


3


University
of Swaziland Kwaluseni


Dear
Sir/Madam


RE:
APPEAL AGAINST THE FAIL AND DISCONTINUE VERDICT


We,
the undersigned (Patience Vilane and Siima Mushala) are students in
the MSc (Environmental Resource Management) Programme. We hereby
forward our appeal against the Senate verdict of fail and discontinue
as recently communicated to us. Although the basis for such a verdict
is not clear to us, we suspect that it has to do with the course ERM
604 Environmental Law for which we obtained an E grade. The basis of
our appeal is on the ground that:


1. The
University failed to fulfil its obligation in terms of offering the
Course ERM 604 Environment Law. This is a first semester course
supposed to be offered for 14 weeks covering 3 lecture hours and two
weekly 3-hour practicals. This was not the case because the course
was squeezed in the second semester causing congestion and increased
pressure on the students load. The course itself was compact (it was
done in four weeks) and at the same time students were not given
adequate time for consultations because the professor was not readily
available as she was coming from Pretoria. This proved difficult, as
we had no previous background information on this course, as it is
not science based.


2. There
is no regulation in either the 2002/2003 University Calendar or the
Faulty of Science Handbook, which stipulates that a student can be
discontinued from the Programmed. Since the said documents fail to
explicitly detail what would be the aftermath of failing a course, it
is felt that the decision thus arrived at is not only grossly unfair
but also falls outside the scope of the regulations governing the
course. We wonder how the verdict of fail and discontinue was reached
when it is not indicated in the University Calendar.


3. The
examination timetable was very congested and this brought to our
attention on the final draft. A request for a re-scheduling was
turned down. This proved to be very difficult for Masters Students to
prepare adequately for the examinations having to write every single
day of the first week of the examinations, especially because
lecturers had to continue during the study break due to the
congestion caused by ERM 604 (Environment Law).


Consideration
should be given to the fact that students are not to blame entirely
but also the many inadequacies in the course delivery. The fact that
the programme started late and the curriculum was not fully covered
affected the performance of the students, therefore the verdict (fail
and discontinue) puts blame on students only without due
consideration of extenuating circumstances under which the course was
offered.


4


The
students therefore feel that they should be given a chance to repeat
the course under normal circumstances - full instructions by full
time professor, as it has affected not only performance but also
overall future with entire year wasted unjustly.


Yours
Sincerely


(Signed)
P. Vilane


(Signed)
S. Mushala


There
was no response to their appeal and on the 10th August 2003, they
sent a reminder to the Respondent through the Registrar of the
University. The letter is attached to the founding papers as annexure
"SLM4".


The
Respondent through the office of the Registrar on the 13th August
2003, directed letters to the Applicants individually as follows:


"Dear
Ms.......


We
received your letters dated the 3rd July and 10th August,
respectively.


Your
appeal against your results was presented to a Senate meeting held on
9th July 2003.


The
Senate took into consideration the fact that there are no
supplementary examination in the faculty of post graduate studies.
Invoking regulation 010.01, the Senate has over the years, and even
in your case, interpreted the absence of supplementary examination to
mean there cannot be repeating students in the faculty of post
graduate studies.


Your
appeal was therefore dismissed.


Yours
sincerely,


(Signed)


S.S.
Vilakati Registrar.


The
letters are filed as annexures "CM1" and "CM2"
for 1st Applicant and 2nd Applicant, respectively.


Presently
the Applicants are requesting the court to review the Senate's
decision on the ground that in deciding that they have failed and
should be discontinued the Senate failed to apply its mind to the
matter and failed to apply the examination


5


regulations
of the University applicable to Master's Degrees which do not provide
that a student who fails his first year of study should be
discontinued.


In
the result they submit that the Senate committed a gross irregularity
in this regard.

In
opposition the Respondent has filed an answering affidavit of the
Vice Chancellor Mr. Cisko Magagula. The application is opposed on a
number of grounds.


The
Applicant's arguments.


The
Applicants are challenging the initial decision to fail and
discontinue applicants and the failure by the Senate to give them a
hearing at the appeal stage, when they had a legitimate expectation
to be heard. Firstly, the initial decision to fail and discontinue
Applicants are not supported by any reason (i.e. no reasons are
referred to in the minutes of Senate). It has been held that if there
is prima facie evidence of an illegality, the absence of reasons was
likely to add considerate weight to the Applicants' case. The court
was referred to the case of Pretoria North Town Council vs V.A.
Electric Ice Cream 1953 (3) S.A. 1 (A).


The
second leg of the Applicants' case is that the Applicants had a
contractual relationship with the University which and that it failed
to carry out its contractual obligations with them as detailed in
their letter of appeal annexed to their founding affidavit dated 3rd
July 2003. In casu it is argued, the Respondent had failed to act
fairly and reasonably. To buttress this point the court was referred
to the case of Zwelibanzi vs University of

Transkei
1995 (1) S.A. 407. Failure to do so, entitles this court to set aside
the decision to fail and discontinue the Applicants as was the case
of Zwelibanzi's case where the decision to fail applicant was set
aside because the University had lost one of the Applicant's tests
papers and the court applied the audi alteram

partem
rule to set aside the University's decision to fail the Applicant.


The
other leg advanced by the Applicants' case is that the University
applied irrelevant regulations. In any event, the Respondent admits
in its answering affidavits that there is no specific applicable
regulation in this matter.


6


In
the result, the University acted arbitrarily and capriciously in
deciding to fail the Applicants and discontinue them for continuing
with their studies. The court's attention was drawn to the case of
North West Townships Limited vs The Administrator of the Transvaal
1976 (4) S.A. (T) at 10 A.

The
Respondent's submissions.


The
gravamen of the Respondent's case is that for the Applicant to have a
cause of action in the present case, for the relief sought, must show
that there was a clear right, which has been violated. In support of
this proposition Mr. Magagula for the Respondent cited the case of
Sipho Mngadi vs Principal Secretary, Ministry of Public Service and
Information and others Civil Case No. 16/2001 at page 5 (unreported).


Alternatively,
it is argued that there was a legitimate expectation arising from a
violation of the rule and/or from practice commonly accepted at the
University with regards to post graduate studies, that in the event
the students fails, he is allowed to repeat. On the question of a
commonly accepted practice creating a legitimate expectation the
court was referred to the dictum in the judgment of Sapire CJ (as he
then was) in Zwelakhe Nkambule vs Sthembiso Dlamini and others Civil
Case No. 202/2000 (unreported).


Mr.
Magagula contended that whether the Applicants have a
legitimateexpectation depends on whether there was a right or
interest which has been unduly violated by the Respondent. He cited
the celebrated South African case of Administrator Transvaal and
others vs Traub and others 1989 (4) S.A. 731 (A) at 748.


It
is further argued that the Respondent is in terms of Section 17 (1)
of the University Act No. 2 of 1983, the academic authority of the
University, empowered to control and direct the teaching, research,
examinations and the award of degrees and diplomas. In its capacity
as such, the Senate is in terms of statute 20 of the University
statutes, entitled to make regulations regarding, inter alia,
examinations and the award of degrees.


7


The
Senate has enacted various regulations governing both graduate and
under graduate degrees. The preamble to the general academic
regulations vest in Senate the power to alter, replace and cancel any
of the academic regulations and state that it is the final authority
for interpretation of these regulations.


In
casu, it is common cause that there is no specific regulation
providing for a student to repeat once he has failed the course nor
is there one providing for discontinuance of students if they fail
the Master's programmes. It is further commonly accepted practice
that all students who fails a Master's programme are not allowed to
repeat but are discontinued. It is argued therefore that in the
absence of a regulation providing for students to repeat once they
fail, it is inconceivable how the Applicants would have had a
legitimate expectation. The Applicants were given a fair hearing
prior to their appeal being considered. The written letters of appeal
and the subsequent hearing were sufficient to enable the Respondent
to decide the matter. To this end the court was referred to the case
of Sandile Khoza and others vs The Vice Chancellor, University of
Swaziland and another Civil Case No. 1454/1992 (unreported).


Finally
it was contended for the Respondent that the decision to discontinue
the Applicants is a matter that is linked to policy considerations
like the maintenance of standards as well as the quality of degrees
awarded for the post graduate programmes. It is not a matter in which
a court can substitute its decision for that of the administrative
tribunal. This involves a balance between protecting an individual
from decisions unfairly arrived at and avoiding undue judicial
interference in the administration of affairs by public authorities.
Whether a student is allowed to repeat or not is a matter of policy
and regulations as promulgated by the appropriate authority, being
the Senate.


The
court's analysis and conclusions thereon.


It
is not in dispute that the Applicants failed a course. The Applicants
are disputing the Senate decision to discontinue them from the
programme.


In
order to succeed in the application for review, the Applicants must
have common grounds for review.


8


Herbstein
et al, The Civil Practice of the Supreme Court of South Africa (4th
ED) at page 929 lists the following grounds for review:


a) Absence
of jurisdiction on the part of the court.


b) Interest
in the cause, bias, malice or corruption on the part of the presiding
officer.


c) Gross
irregularity in the proceedings; and


d) The
admission of inadmissible or incompetent evidence, or the rejection
of admissible or competent evidence.


In
the present case the Applicants have alleged that the Respondents did
not apply their mind and/or that there was a gross irregularity in
the manner the Respondent acted.


The
Applicants to have a cause of action in the present case, for the
relief sought, must show that there was a clear right, which has been
violated (see Sipho Mngad's case supra). Alternatively that there was
a legitimate expectation arising from a violation of the rule and/or
from practice commonly accepted at the University with regards to
post graduate studies, that in the event the student fail, he is
allowed to repeat.


In
the present case, it is not clear whether the Applicants are alleging
that they have a legitimate expectation that the decision by the
public authority will be favourable or whether they are relying on
the second leg of the principle that, at least before an adverse
decision is taken, the Applicants will be given a fair hearing.


Corbett
CJ in the Traub case supra at page 758 (D in fin E) puts it this way,
and I quote:


"The
legitimate expectation doctrine is sometimes expressed in terms of
some substantive benefit or advantage or privilege which the person
concerned could reasonably expect to acquire or retain and which it
would be unfair to deny such a person without prior consultation or
prior hearing, and at other


9


times
in terms of a legitimate expectation to be accorded a hearing before
some decision adverse to the interests of the person concerned is
taken. As Prof Riggs puts it in the article of which I have referred
at 404:


"The
doctrine of legitimate expectation is construed broadly to protect
both substantive and procedural expectation. In practice the two
forms of expectation may be interrelated and even tend to merge.
Thus, the person concern may have a legitimate expectation that the
decision by the public authority will be favourable, or at least that
before an adverse decision it taken he will be given a fair hearing".


In
casu it is common cause that there is no specific regulation
providing for a student to repeat once he has failed the course nor
is there one providing for discontinuance of students if they fail
the Master's programme. It is a commonly accepted practice that all
students who fail a Master's programme are not allowed to repeat but
are discontinued. In the absence of a regulation providing for
students to repeat once they fail, it is inconceivable how the
Applicants would have had a legitimate expectation. The Applicants
bear the onus to prove that the Senate's decision was in
contravention of the regulations. In the present case, in my mind,
all the Applicants have done is to try and prove that in the negative
by alleging that the University did not have the power to fail and
discontinue them. Yet the important question is whether the
University breached any provisions of the academic regulations by
failing and discontinuing them from the programme. Therefore the
Applicants cannot claim to have had legitimate expectation to be
allowed to repeat in the absence of a regulation stating students in
post graduate studies are entitled to repeat courses they failed.


In
this regard I agree with the submissions made by Mr. Magagula though
not expressly stated, that a student may not repeat a course. The
fact that there is no provision for a supplementary exams implies
that a student cannot be permitted to continue with the programme if
he fails the course. This is more so if one has regard to the policy
factors of maintaining standards and quality.


According
to Section 17 (1) of the University Act No. 2 of 1983, the academic
authority of the University is vested on Senate to control and direct
the teaching, research examination and the award of degrees and
diplomas. In its capacity as such, the Senate is in terms of statute
20 of the University, entitled to make regulations


10


regarding
inter alia, examinations and the award of degrees. The Senate in its
capacity as the academic authority of the University is responsible
for enacting regulations for eligibility of person for admission to
course, their continuance in such courses and for the standard of
proficiency to be attained in each examination for a degree of the
University.


The
Senate enacts academic regulations on the recommendation of the
relevant department and in so doing considers various policy factors
such as the quality of the degrees to be awarded as well. The Senate
sets standards that have to be attained prior to a person being
awarded a degree, including whether students are permitted to repeat
or are discontinued if they fail a course.


It
would appear to me that Mr. Magagula is correct that the Senate's
power to interpret regulations is exercised against the background of
policy factors having regard to express and implied provisions of the
regulations. It appears that under graduate diploma and certificate
programs presented no difficulties for the reason that the
regulations are clear that in the event a student fails, he is
allowed to supplement a course and if he fails a supplementary
examination he repeats the year and is discontinued after failing
twice.


However,
it appears that different considerations apply to post graduate
studies. In a bid to maintain standards and quality of degrees
awarded, the University does not permit supplementary examination and
it would be inconceivable that it would allow students to repeat.
This practice seems to be applied in other Universities as well
depending on the particular programme. In this regard what is said by
Euphrasia Kunene the Dean of the Faculty of Post Graduate studies at
the University in her supporting affidavit appears to be the
position, she deposed as follows:


"3. As
Dean of Post Graduate studies, I am the Chairperson of the Faculty
Board, which is responsible inter alia, for making recommendations to
Senate regarding academic regulations as well as standards of
proficiency to be attained by students for eligibility to be awarded
a master's degree.


11


4. The
Faculty Board has contributed to the formulation of regulations and
policies governing post-graduate studies. Since the master's
programmes was introduced, it was envisaged that only student who
have a "C" grade in the relevant course would be admitted
to the master's programme to ensure that they would handle the
academic work well without supplementation or repetition as well as
maintain the standards and quality of the degree.


5. In
order to maintain standards and quality, the faculty recommended
promulgation of Regulation 050.85 which provides that a candidate to
be deemed to have been successful in a master's programme, he should
have passed separately or all required elements of course work and
thesis. In addition to Regulation 050.85, the Regulation 552.41
provides that there shall be no supplementary examination, which
impliedly means that any students who fails a course cannot repeat."


In
my considered view, having regard to the facts of this matter the
Senate applied its mind properly to the Applicants' case and there
was nothing irregular about the decision to fail and discontinue the
Applicants. The Senate was entitled to decide the matter in the
manner it did to maintain standards and the quality of degrees
awarded. The fact that no student is allowed to supplement courses
implies that any student who fails a course is not permitted to
continue with the programme. Regulation 552.41 provides that there
shall be supplementary examinations, except as provided for by the
thesis.


It
will appear to me further, following what was held in the case of
Sandile Khoza and others vs The Vice Chancellor, University of
Swaziland and another Civil Case No. 1454 of 1992 (per Dunn J) that
the Applicants were given a fair hearing prior to their appeal being
considered. The written letters of appeal and the subsequent hearing
were, in my view, sufficient to enable the Respondent to decide the
matter. In the Sandile Khoza case supra Dunn J (as he then was) said:
and I quote:


"It
is, I think, not desirable that rigid criteria be laid down of what
should be considered in a situation where a decision has to be taken
on conflicting written reports. It is preferable that each case be
decided on its own particular facts and circumstances. There may be
cases in


12


which
a party makes admissions in his written report with full knowledge of
the complaint against him. A decision might in such circumstances, be
made without a formal hearing ensuring the right to cross-examination
to decide the truth of the matter.


There
may be cases where a complaint is borne out by clear and independent
written reports which a party has been made aware of and cannot
adequately report to. Here again a decision adverse to such party may
be taken without the need for appearance of the parties concerned. On
the other hand there will be cases in which the allegations and
counter allegations, cry out for a more detailed enquiry in the
presence of the parties to establish their truth ...".


It
would appear to me, that the first challenge by the Applicants in
that the initial decision to fail and discontinue Applicants is not
supported by any reasons is without merit in that the Senate at that
stage was considering results of many other students besides the
Applicants and thus there was no need for reasons. In fact ex facie
the minutes no reasons are given for the other students mentioned in
the said minutes.


Lastly,
I am unable to find that in casu there was any contractual
relationship between the parties, I agree in toto with Mr. Magagula
in this regard that on the facts before me that the dicta in
Zwelibanzi case supra cannot apply. The facts of the two cases are
clearly distinguishable from each other.


In
the Zwelibanzi case, the Applicant, a third year Economic Sciences
student at the Respondent University, had failed her Economic 111
examination. It appeared that she had obtained a year mark of 39% for
that subject and her examination mark of 56% was insufficient, when
taken with her year mark, to give a pass mark of 49%. Her final mark
was 48%. It appeared further, however, that the University had lost
or mislaid one of her test papers during the relevant year (an
allegation which had not been shown to be false) with the result that
she had been awarded a mark of 0% for the test. Her year mark had
been detrimentally affected by such zero mark in that test. The
Applicant thereupon requested relief in terms of Regulation C2.4 of
the faculty regulations which provided that "third - year
students who have obtained a mark of 47 - 48% may be given a
re-evaluation or oral as soon after results are know as possible".
This request was refused.


13


In
the present case the student's work was not missing or misplaced by
the University but was found by the University to have been
sub-standard thus the verdict "fail and discontinued".

In
the result, the application is dismissed with costs.


S.B.
MAPHALALA


JUDGE