MAFUSIRE J: It must be few decisions that will surpass the
irrationality of the respondent's conduct in this matter. The sole point for
determination was whether the course of study that the respondent had offered
the applicants and others, and for which the applicants had studied for a
year,was a postgraduate diploma or a mere diploma. The
applicants said it was a postgraduate diploma. The
respondent said it was a mere diploma. There was a deadlock. The parties came
to court. I read the papers. I heard argument. At the end of the hearing I
granted the applicants the relief they sought. I considered that the
respondent's decision to switch, in midstream, and in the manner it did, the
designation of the course from postgraduate diploma to a
mere diploma, was grossly unreasonable in the Wednesbury sense, that
is to say, a decision so grossly unreasonable as to be irrational and
outrageous in its defiance of logic or of accepted moral standards that no
sensible person who had applied his mind to the issue to be decided would have
arrived at it.[1]
Here are the facts.
The respondent is a university. The course in question was
offered by its Faculty of Law. It was called Diploma in Law (Conciliation and
Arbitration). The applicants had not been the pioneers of that course. I was
not told for how long it had been running. But graduates in the stream ahead of
that of the applicants had been awarded certificates with the designation “Post-Graduate
Diploma in Law (Conciliation and Arbitration)”. The respondent said
that was immaterial.
The respondent had invited interested persons to apply for
the course. It had flighted an advert. The heading on that advert had read: “UNIVERSITY
OF ZIMBABWE FEBRUARY 2011 POST GRADUATE AND DIPLOMA PROGRAMMES”. There
had been several other courses offered by several other faculties such as
Agriculture, Arts, Engineering, Science, Social Studies and Veterinary
Sciences. Most of these were Masters' degrees. Under the Faculty of Law the
advert said: “Diploma in Law (Conciliation and Arbitration) (1 yr f/t)”.
The respondent said the advert did not say “post graduate
diploma in law”. Therefore, so the argument ran, the applicants could not have
been under any illusion as to the exact designation of the course that they had
enrolled for.
That was the bulwark of the respondent's case. However, it
seems the respondent had conveniently ignored, or inadvertently overlooked, the
rest of the advert and the other documents relevant to that course. Starting
with the advert itself, under “Entry Requirements” and against
“Diploma in Law …” was the following: “A good first
degree in Law. Applicants with other professional qualifications and
experience in Labour Law and Labour Relations may be required to sit a
qualifying examination.” Now is a university course that requires as
an entry qualification a first degree not a post graduate course?
But this is just the beginning. There is more to come. It
was a charade.
The applicants had responded to the advert. They had
applied. They had been accepted. The acceptance letter had read in part:
“ADMISSION IN THE YEAR 2011 TO THE POST GRADUATE
DIPLOMA IN LAW – CONCILIATION AND ARBITRATION
-------------------------------------------------------------------------------------------------------
I am pleased to inform you that your application for
admission to the above mentioned degree programme has been accepted.
……………………………………………………………………………………………………………………………………………………………………………………
I would like you to note that this offer is made
without prejudice to the rights which the University may have to withdraw or
cancel in the event of you or the University being unable to meet the
conditions of the offer.
Kindly note that admittance to the University is
made subject to your accepting the conditions set out in this letter and your
registering for the programme. Failure to do so may result in the University
withdrawing your name from its list of successful applicants for the 2011
admission year.”
(Underlining and emphasis by the author)
It was part of the respondent's argument that the prerogative
to offer any course of study, to regulate it, and even to withdraw it, lies not
with the applicants, not with the court, not with anyone else, but solely with
the respondent's Senate. Therefore, so the argument ran, where the respondent
had decided to withdraw the academic transcripts and diploma certificates that
said “post-graduate diploma in law” and replace them with those
simply inscribed “diploma in law” it was not up to the
applicants or the courts to question that decision. This was in spite of the
acceptance letter saying the respondent could withdraw or cancel the offer only
in the event of an applicant or the respondent failing to meet the conditions
of the offer. The conditions of the offer as stipulated in the letter
related to the registration times, the starting times for lectures, the payment
of the various fees for tuition, for registration, for examinations and for the
library, and the need for an identity photograph. Evidently, none of these was
the reason for the respondent's incredible decision.
The next document was the student enrolment form. For the
post-graduate diploma in law the denotation was “PDL”. The code
for each of the subjects in that course started with the letters “LLD”.
The respondent's instruction under Section B of the student enrolment form,
said, among other things, that the next section, i.e. Sections C and D, would
form the basis of an applicant's record. The instruction required an applicant,
among other things, to denote the correct code for his or her course of study.
The instruction then went on like this:
“ENSURE THAT YOU GET DEPARTMENT AND FACULTY APPROVAL
IN THE COLUMNS PROVIDED. THE DEPARTMENT/FACULTY SHOULD CIRCLE THE COURSE/UNIT
CODE FOR WHICH YOU ARE ACCEPTED AND THEN INITIAL”
In s D, the applicants had filled in the subject codes, all
starting with LLD. The faculty had signed. In s E the faculty had placed its
seal. Thus the applicants had obtained the requisite departmental and faculty
approval for the course of study of their choice.
That was not all.
The diploma was done over two semesters. The result slips
for the first semester had the following heading: “EXAMINATION RESULTS
FOR 2011 SEMESTER 1 PDL POST GRAD DIPLOMA IN LAW (CONCILIATION
&ARBITRATION)”.
It was the same for the second and last semester. But the
respondent still maintained it was a mere diploma, not a post-graduate diploma.
That was not all. There was still much more.
Apart from the student enrolment form,there was another
application form titled “POSTGRADUATE ADMISSION APPLICATION FORM”.
In s 4, under the heading“CHOICE OF DEGREE OR DIPLOMA PROGRAMME”
an applicant would fill in the name of the programme of study and the relevant
code. On all the forms laid before me the applicants had filled in “Diploma
in Law (Conciliation and Arbitration)”. And except for one which had “PDL”
filled in under “Code”, the rest of the forms had been blank on
the box for “Code”.
The respondent went to town. It was argued that the
applicants had filled in “diploma” and not “postgraduate
diploma” and that therefore they had known exactly that they had been
enrolling for a diploma, not a postgraduate diploma. However, that argument
missed a little detail. Subsection 1 of s 4 on p 3 of that admission
application form had required the applicant to refer to an APPENDIX before he
or she could fill in his or her choice of degree or diploma programme. That
APPENDIX had directed an applicant first to choose his or her programme and
then to enter the code in the box in s 4.1 on p 3. On the APPENDIX there had
been all the other faculties offering the postgraduate programmes. They had
listed their own programmes of study as well as the individual subjects for
each particular programme. But there had been nothing for the Law Faculty. The
applicants said all the application forms handed to them had “PDL”
inscribed on them on the top right hand corner. This had been done in long hand
by none other than the respondent itself. This was not contested. The
inscription was evident on the annexures produced in court. Thus, for the law
diploma the APPENDIX was the “PDL” inscription by the
respondent. Therefore, there could have been no question by either party as to
what type of diploma course the applicants had enrolled for.
Even the student identity documents issued for those studying
for the law diploma had “PDL” inscribed on them.
The next document was one containing the regulations
governing that law diploma course. It was titled “REGULATIONS GOVERNING
THE POST GRADUATE DIPLOMA IN LAW (CONCILIATION AND ARBITRATION)”.
Under “ADMISSION CRITERIA” the regulations read:
“A person may be considered for admission as a candidate
for the Postgraduate Diploma in Law if the person has
obtained a first degree in Law of an appropriate standard from this or another
university.”
The regulations went on to state that the Senate could in
advance approve an individual course or courses offered by another university,
as a course which would allow credit for, or exemption from, a course
prescribed for “the Postgraduate Diploma in Law.”
The regulations ended by providing that the classification
of the Diploma “… shall be done in accordance with University of
Zimbabwe regulations.” Thus, it was not said the classification would
be at the whim of the University Senate as was the essence of the argument
placed before me.
That was not all.
The lecturers in the various departments for the various
subjects to be taught for that diploma course had presented the applicants with
the course outlines and the course objectives. All of them had “POST-GRADUATE
DIPLOMA IN LAW” as part of the headings.
The applicants had gone on to sit examinations in the
subjects that they had studied, including submitting dissertations. All the
examination question papers had been marked “POST GRADUATE
DIPLOMA IN LAW (CONCILIATION AND ARBITRATION)”
The next development must rank as bizarre.
On graduation day all the applicants had been capped by the
respondent's Chancellor. The deans in the various faculties had presented the
Chancellor with their respective citations and the lists of the graduands. In
the Faculty of Law the citation had run: “The Dean of Law, Mr E. Magade,
will present to the Chancellor those Graduands who are present. POST-GRADUATE
DIPLOMA IN LAW (CONCILIATION & ARBITRATION)”.
It does not end there.
After graduation some of the applicants had collected their
academic transcripts with the list of subjects that they had passed and the
grades that they had attained. The transcripts had been marked: “POST
GRAD DIPLOMA IN LAW (CONCILIATION & ARBITRATION)”. Not only
that, but three graduates in the applicants' class had collected their diploma
certificates. The designation on those certificates, as in the preceding year,
had been “Post-Graduate Diploma in Law (Conciliation and
Arbitration)”. Only when some of the applicants had gone to collect
their academic transcripts, and the others, the actual diploma certificates,
was it then that the respondent, according to its Vice-Chancellor, the deponent
to the opposing affidavit, had noticed that there had been-
“… an apparent mistake when the admission letter… was
written because clearly the reference to Post Graduate Diploma in Law
(Conciliation and Arbitration) is not in sync with the programme which was in
the contemplation of the parties at the time of the offer and acceptance.”
As to how such a mistake had possibly arisen and how it
could have run for so long and on so many documents without detection, the
respondent had this to say:
“… [I]t is my contention that the caption [on the rest of
the documents] was wrong and irregular as the University was not offering that
Programme but a mere Diploma in Law (Conciliation and Arbitration). The error
was a result of same (sic) stereo typed (sic) minds in the University
Administration System who, unfortunately, did not care to verify the
correctness of the Diploma title as aptly described in the advert.”
In my view, and in the light of what I have highlighted
above, there was everything irrational in the respondent's conduct. That course
had run for at least a year before the applicants had embarked on it. The
applicants' predecessors in the year before had been issued with certificates
designated “postgraduate”. Virtually all the paper work, from
the application forms, the student enrolment forms, the regulations governing
the course, the course outlines and the examination and academic transcripts,
had all been inscribed with “postgraduate diploma”. Some lucky
students in the applicant's class had actually been issued with diploma
certificates designated “Post-Graduate Diploma … Certificate”.
With all that, the decision to withdraw the “postgraduate”
designation from the diploma for only a section of the students in the
applicants' class could not possibly be blamed on an error by “stereotyped
minds” lurking in the respondent's administration.
There was simply no error. The respondent had carefully
considered and had carefully designated the course that it had intended to
offer. It was to be a postgraduate diploma in law
(conciliation and arbitration). The applicants had accepted it as such. They
had paid the tuition and other fees on that basis. They had studied and had
been examined on the course as a postgraduate diploma.
They had graduated and had been capped by the respondent's Chancellor with a postgraduate
diploma. Yet for reasons not really disclosed, the respondent had purported to
downgrade the course to a mere diploma, thereby purporting to rob it of its
prestige and its allure. In my view, such conduct was irrational in the Wednesbury
sense.
At the hearing the respondent took a point in limine.
Before me were six applicants. The founding affidavit had been deposed to by
one of them. It had told the full story. It had made out the whole case. All
the annexures had been attached to it. But it had made no mention of the rest
of the applicants. For that reason the respondent argued that this applicant
had no authority to speak on behalf of the rest of them. It was argued that the
rest of the applicants had been improperly before the court.
I dismissed the point in limine. It had no merit.
The rest of the applicants had filed a separate affidavit deposed to by all of
them. They said they had read and had understood the first applicant's founding
affidavit. They said they confirmed giving their authority to the first
applicant to depose as he had done. They verified and associated themselves
with the contents thereof. I was satisfied that the rest of the applicants had
properly been brought before me.
The respondent's decision to downgrade the diploma course
from being a postgraduate diploma to a mere diploma, whatever its real reasons
had been, could not apply retroactively. If it had been an error, which I
reject it was, then it was not a justus error, namely a reasonable
mistake that reasonably might have been induced by the applicants themselves[2]. For the
applicants, they knew they were enrolling for a postgraduate diploma in law.
Others had done it before them. The respondent was also demonstrably of the
same mind. The acceptance letter which the respondent blamed for the alleged
error was simply not the sole document to signify the acceptance or admission
of the applicants into the programme. The acceptance process had been a lengthy
one. Among other things, the advert, the admission application forms, the
student enrolment forms and the acceptance letter, had all been part of the
offer and acceptance process.
The applicants explained that there had been no change in
the content or curriculum of that programme from those that had studied it
before them. Among other things, the fees had remained the same. This was not
contested. So I took it as fact.
From the course outlines and the course objectives the
programme seemed to have been carefully designed to cater for a certain niche
in the field of industrial relations and conciliation. Most of the applicants,
from the information given on their student enrolment forms, appeared to have
been senior employees in their various fields of endeavour. Some of them had
actually been sponsored by their employers. For them it seems the attraction of
the course was its designation as a postgraduate diploma programme. That had
prestige. For the respondent to then arbitrarily downgrade it, not even in
midstream, but well after graduation, was manifestly wrongful. It was blatantly
a breach of contract.
The applicants argued that they had a legitimate
expectation to be conferred with diploma certificates that were properly
designated for the type of course that they had studied. They argued that the
respondent had breached the audi alteram partem rule of natural
justice when they had not been afforded the chance to make representations.
Inevitably, reference was made to the cases of Administrator, Transvaal and
Ors vTraub and Ors 1989 (4) SA 731 (A); Metsola vChairman,
Public Service Commission & Anor 1989 (3) ZLR 147 (S); Health
Professions Council vMcGown 1994 (2) ZLR 329 (S); Taylor vMinister
of Education & Anor 1996 (2) ZLR 772 (S); Mawenga vPTC
1997 (2) ZLR 483 (S) and Minister of Information vPTC Managerial
Employees Workers' Committee 1999 (1) ZLR 128 (S).
However, in this matter I feel I should not concern myself
with the doctrine of legitimate expectation or the audi alteram partem principle.
The respondent's conduct was patently a breach of contract. Furthermore, its
decision, however it was made, whenever it was made and by whomever it was
made,was so grossly unreasonable as to be liable to be set aside.
The respondent referred to s 16 of the University of
Zimbabwe Act, Cap 25: 16 and argued that only its Senate had the
exclusive power to confer degrees and diplomas and even to withdraw them. It
was argued that the process of arriving at such decisions was an administrative
action. It was said such a decision is arrived at after taking into account
academic considerations which this court is not placed to undertake.
The portions of s 16 of the University of Zimbabwe Act
cited by the respondent read as follows:
“The Senate as the academic authority of the University
shall have the following powers and duties –
(a) ……………………………………………………………………………
(b) to be responsible for academic policy, the
regulation of courses of study and the examinations held by the University,
(c) to regulate the admission of students
to the University and to the courses of instruction held by the University,
(d) to recommend to the Chancellor, through the
Council, the conferment of degrees, including honorary degrees, diplomas and
other awards and distinctions of the University and the withdrawal and
restoration of any such award …”
The respondent's argument was illusory. The University of
Zimbabwe Act is irrelevant. The respondent is an administrative authority. Like
all administrative authorities its decisions are subject to review. It must not
act wrongfully or unlawfully or irrationally or whimsically or capriciously. If
it does its decisions will be set aside.
Although not well developed, it was the essence of the
respondent's argument that as a rule of administrative law the court will
refrain from usurping the functions of an administrative functionary. It will
avoid substituting its own decisions for that of the administrative
functionary. Reference was made to the case of Mhanyami Fishing and
Transport Co-operative Limited & Ors vDirector General Parks &
Wildlife Authority NO & Ors HH 92-13.
In that case MAKONI J declined to grant certain fishing
licences that the applicants had been denied by the respondents. Such licences
had been continuously and routinely issued to them for the previous ten years.
In turning down the application the learned judge had felt that to grant the
order sought would have been tantamount to substituting the decision of the
court for that of the administrative functionary.
As noted by MAKONI J in the Mhanyami Fisheries
case; by MATHONSI J in the case of Gurta AG vAfarasMtausi
Gwaradzimba NO HH 353-13 and by myself in the case of CJ Petrow &
Company Limited vAfarasMtausi Gwaradzimba NO HH175/14, the
approach in such matters was as set out by McNALLY JA in the case of Affretair
(Pvt) Ltd & Anor vM K Airlines (Pvt) Ltd 1996 (2) 15 (S).
Quoting from BAXTER Administrative Law, at p 681, the learned judge of
appeal said[3]:
“The function of judicial review is to scrutinize the
legality of administrative action, not to secure a decision by a judge in place
of an administrator. As a general principle, the courts will not attempt to
substitute their own decision for that of the public authority; if an
administrative decision is found to be ultra vires the court will
usually set it aside and refer the matter back to the authority for a fresh
decision. To do otherwise 'would constitute an unwarranted usurpation of the
powers entrusted [to the public authority] by the Legislator'. Thus it is said
that: '[t]he ordinary course is to refer back because the Court is slow to
assume a discretion which has by statute been entrusted to another tribunal or
functionary. In exceptional circumstances this principle will be
departed from. The overriding principle is that of fairness.”
(my emphasis)
Thus in exceptional circumstances a court will substitute
its own decision for that of the administrative functionary. There are four
criteria:
1 where the end
result is a foregone conclusion and it would be a waste of time to refer the
matter back;
2 where further
delay could prejudice the applicant;
3 where the
extent of bias or incompetence is such that it would be unfair to the applicant
to force it to submit to the same jurisdiction;
4 where the court
is in as good a position as the administrative body to make the decision.
(See Affretair's case at pp 24 – 25)
Mhanyami Fishingis clearly
distinguishable. The court held that it could not substitute its own decision
for that of the Parks Officials because there had simply been no sufficient
information laid before it to grant the licences sought. That position, with
due respect, was correct on the facts of that case.
In Gurta the court substituted its decision for
that of the administrative functionary after it had set aside his decision. It
found that all the four criteria above existed. Again that decision was, with
due respect, correct.
In casuI considered that
all the four criteria existed to enable me to substitute my own decision for
that of the respondent. In the premises, I granted the order in terms of the
draft. The order was as follows:
“IT IS ORDERED THAT
1. The Diplomas issued to the
Applicants be and are hereby declared [to be] Post – Graduate Diplomas in Law
(Conciliation and Arbitration).
2. The Respondent be and is
hereby ordered to issue to the Applicants the Diplomas referred to in (1)
above.
3. The Respondent be and is
hereby ordered to pay the costs of suit.”
J. Mambara & Partners, applicants' legal practitioners
Chihambakwe,
Mutizwa & Partners, respondent's legal practitioners
