The
setting of examinations and the marking of examination scripts for any course
leading to a Certificate, Diploma or Degree programme is regulated by the
Institution concerned; such institution or body deriving authority to conduct
and mark examinations from an Act of Parliament.
The
courts generally do not intervene in disputes relating to the marking of
examination papers as the institutions responsible for the conduct of
examinations are themselves self-regulating bodies established by
statute. It is therefore undesirable and indeed unusual for the courts to
intervene as umpire in the resolution of disputes relating to examination
results. As a general rule where an individual's rights have been
infringed or violated, or where there is unfairness, an individual may seek
redress from the courts as against an Examination Body or Institution.
The
applicant's claims, as set out in the Draft Order, are as follows:
“1.
That the application be and is hereby granted.
2.
An order to permit the Applicant to see and verify the scripts is hereby
granted.
3.
An order for a private independent pharmacist to re-mark the papers to be
nominated by Applicant and Respondent in consultation be and is hereby granted.
4.
Respondent to pay costs of suit.”
At
the hearing of the matter, and after hearing brief oral arguments from both
parties, I dismissed the matter with costs on an attorney and scale and
indicated that my full reasons would follow.
These
are my reasons.
The
facts of the matter are that the applicant was employed at Datlabs, Bulawayo as
a Pharmaceutical Technician. Sometime in 2005, his employer took a
decision to sponsor him to enrol for a Pharmacy Technician Diploma
programme. The applicant registered with the School of Pharmacists
Technicians on 26th January 2005. The lectures for the
programme were conducted at Harare Polytechnic for both oral lessons and
practicals. The registration was for a Trainee Pharmacist Technician. At
the end of 2005, the applicant wrote examinations under (HEXCO), Higher
Education Examination Council, for the Certificate for Pharmaceuticals
Technology. The applicant passed all the eight subjects. In the
second year, the applicant sat for five subjects and he passed all subjects at
the same sitting. The third and final year was set and marked by the
Pharmaceutical Council of Zimbabwe. The applicant was in his third year in
2007. He sat for six subjects and the result was that the applicant failed
all subjects and only passed one subject. The applicant was dismayed by
the outcome and queried the results with the Pharmaceutical Council of
Zimbabwe. The Pharmaceutical Council of Zimbabwe maintained that the applicant
had failed the examination. The applicant wrote further examinations in
2008. He only passed two subjects. The applicant took the issue up
with the Registrar of the Pharmaceutical Council of Zimbabwe. He demanded
to be given access to the examination scripts. The applicant's employers
pleaded with the respondent to allow them to view the applicant's results and
after some delay, the applicant's employers were allowed to examine the applicant's
examination scripts.
It
is the applicant's contention that the conduct of the respondent was unfair and
not transparent. The applicant avers that the conduct of the respondent is
not above board and that the court should make an order compelling the respondent
to allow the applicant to verify the examination scripts. The applicant
further argues that an independent pharmacist must be nominated to re-mark the
examination scripts.
Counsel
for the applicant failed to articulate any meaningful argument in support of
the application.
Any
legal practitioner in her position would not have been expected to make
sensible arguments in support of this application.
Counsel
for the respondent filed fairly detailed Heads of Argument. The issues that
were set out in his Heads of Argument as being critical to the determination of
this matter were as follows:
“1. Whether it was competent for
the applicant to be granted a court order permitting him to see and verify his
November 2008 Final Examination scripts.
2. Whether the said Examination
scripts should be re-marked by an independent pharmacist.”
Before
I deal with the issues set out above I must observe that this application is
rather unusual.
Our
courts do not have any place in determining the conduct of examinations and the
marking and verification of examination results. In this country, there
are various bodies and institutions established by statute to regulate the
qualification of persons into various bodies or institutions. The
standards for the setting, marking and verification of results vary from one
institution to the other. In the present application, the respondent is
regulated by the Health Professions Act [Chapter 27:19]. Section 136 of the
Health Professions Act [Chapter 27:19] provides as follows:
“Without derogation from any
other law, whenever the Authority, a council, a committee or a registrar
exercises any function under this Act which has or may have an adverse effect
on the practice or rights of any health practitioner, the Authority, Council,
committee or registrar shall ensure that it or he, as the case may be, observes
the rules commonly known as the rules of natural justice, and, in particular,
shall ensure that the Health practitioner concerned is afforded an adequate opportunity
to make representations in the matter to the Authority, the council, committee
or the registrar, as the case may be.”
In
my view, the respondent bent over backwards to accommodate the requirements of
the applicant.
Upon
receipt of the applicant's letter of complainant on 22 January 2009, the respondent
verified the applicant's examination scripts and matched the handwriting
thereon and checked for anomalies. None were found. The respondent went
further to have an independent moderator to inspect the examination scripts. No
anomalies were found. The respondent was not obliged, in my view, to allow
the applicant to inspect his examination scripts, for doing so would amount to
the applicant marking his own examination papers. This would set a very dangerous
precedent and open floodgates for disgruntled members of society to demand an
inspection of their examination scripts whenever they were unhappy about their
results. Most institutions and examination bodies are self-regulatory and
have checks and balances to ensure fairness and transparency.
It
is common cause that after the applicant's employers piled pressure on the respondent
to comply with his demands, the respondent addressed a letter, dated 17th
August 2011, to the applicant's employers in the following terms:
“The above matter refers.
The Education and Liason Committee, at its fourth meeting
which was held on 4 August 2011 received and considered your request that Mr
Herbert Sithole be permitted to repeat the Pharmacy Technicians Final Examinations
for the third time. Regrettably, the Committee did not approve your
request that Mr Sithole should be accorded a third chance to repeat the
examination.
The Committee resolved that he could re-apply for admission
into the Pharmacy Technician Training course, if he wished.
Yours faithfully
PHARMACISTS COUNCIL OF ZIMBABWE
A. Karonga
Registrar.”
The
applicant declined the offer to re-apply for the Pharmacy Training course and I
cannot understand how the court can be requested to grant the order sought.
It
is evident that the requirements of fairness in terms of section 136 of the
Health Professions Act [Chapter 27:19] have been esablished in this
case. The examination scripts were marked and moderated, and further
verified upon receipt of the applicant's complainant. The fact that the applicant
is not permitted to have sight of the scripts does not vitiate the compliance
with the fairness requirement. What is sought to be verified is that the
marks recorded were those obtained by the applicant and this is what
occurred. The applicant's employers had sight of the examination scripts.
The fact that the applicant does not like the outcome of the examinations does
not constitute unfairness. There are no legal or practical grounds for
allowing the applicant to have sight of the examination scripts and to have
them re-marked by an independent pharmacist. There is no provision in the Health
Professions Act [Chapter 27:19] and the Pharmacy Technicians (Training)
Regulations, 2000 for allowing such a procedure. The applicant must, and
should, be aware that the standing practice is to refuse to avail marked answer
scripts for the Final Examination to candidates. As I have already
indicated, granting the order sought would set an unusual and dangerous
precedent where every candidate who is dissatisfied with their results would
demand to see the examination scripts and have an independent pharmacist mark
them. This is undesirable and it would throw the entire process of marking
and releasing results into disarray. The certainty and finality of
examination results would be compromised and abused by candidates. The
granting of the order sought would place an unnecessary and onerous burden on
the respondent.
The
examiners who conduct the marking of examinations are appointed in terms of
section 13(1) of the Pharmacy Technicians (Training) Regulations and are
registered pharmacists or other suitable persons with relevant
qualifications. It is highly unlikely, therefore, that any independent
pharmacist proposed by the applicant would come up with a different result.
I
find no merit in this application, a position supported by the finding in Metsola v Chairman, Public Service Commission and Another
1989 (3) ZLR 147 (S) where the court held that the criteria is one of fundamental
fairness and for that reason the principles of natural justice are always
flexible.
In
casu, the applicant failed to establish any unfairness on
the part of the respondent….,.
The
applicant ought to have taken the offer given to him to re-apply for the
programme and by this date he would have sat for the Final Examinations.
I
accordingly dismissed the application on an attorney and client scale.
