On 20 February 2014, the High Court, in HC3546/13, issued
an order in the following terms:
“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. Respondent be and is hereby ordered to pay the costs of
suit.”
This is an appeal against the whole judgment of the High
Court captioned above.
The Facts
The appellant invited interested parties to apply for
different programmes that were on offer at the University of Zimbabwe through
an advertisement that was flighted on 24 October 2010. The Faculty of Law
offered a course called Diploma in Law (Conciliation and Arbitration). The
respondents applied for the course and were accepted. There were several other
courses offered by several faculties including Agriculture, Arts, Engineering
and most of these were Masters' Degrees.
In casu, the problem arose when, after graduation, the
respondents went to collect their transcripts and certificates. Their
certificates were inscribed “Diploma” only, yet the respondents believed that
they had been studying for and were therefore expecting to receive not mere Diplomas
but Post Graduate Diplomas.
The facts suggest that at all relevant stages after the
respondents' responses to the advertisement until after the respondents'
graduation, the parties dealt with each other on a footing that the respondents
were pursuing a postgraduate diploma course. It was only after their graduation
that the respondents realised that their certificates were endorsed that they
had successfully pursued a diploma and not a post-graduate diploma programme.
The admission or acceptance letters that were written to
the respondents 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. (the underlining up to this stage of the letter is mine)…,..
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 the 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.”
In the court a quo, the appellant, which was then the
respondent, argued that the prerogative to offer any course of study, to
regulate it, and even withdraw it lies not with the then applicants, who are
the respondents herein, nor with the court nor with anyone else, but solely
with the respondent's Senate.
Notably, however, the appellant withdrew the respondents'
post graduate diplomas, in circumstances where the acceptance letter empowered
it to withdraw or cancel the offer only in the event of either the appellant or
the respondents failing to meet the conditions of the offer.
It is the respondents' contention that the conditions of
the offer, as stipulated in the letter, related to the registration times, the
starting times for lectures and the payment of various fees for tuition and for
registration, among other things expected from a student at a university. They
contend that they adhered to the conditions and that the two parties had
entered into contracts. They contend that they fulfilled the contractual
obligations but the appellant breached the contract by failing to give the
respondents the post graduate diplomas that they had studied for.
Aggrieved by the appellant's decision to reduce their
postgraduate diplomas to mere diplomas, the respondents applied to the High
Court for a declaratory order.
The High Court has the power to grant the same in terms of
section 14 of the High Court Act [Chapter 7:06]. The High Court granted the
order that was sought, in the terms captured at the beginning of this judgment.
The High Court confirmed that the respondents had studied for a Post Graduate Diploma
in Law (Conciliation and Arbitration). The appellant was ordered to issue the
respondents with post graduate diplomas.
Aggrieved by the decision of the court a quo, the appellant
filed the instant appeal on the following grounds:
“The Court a quo failed to judiciously exercise its
discretionary power in issuing a declarator in favour of Respondents in the
circumstances, particularly that it:
(a) Failed to properly take into account the undesirable
consequences of interfering with the recommendations of the Appellant's Senate
in respect of the conferment, withdrawal or restoration of degrees, diplomas
and any other award;
(b) Failed to properly take into account the nature of the
advertisement flighted by the Appellant inviting applications for the programme
in issue and the respective responses by Respondents to the said invitation.”
In its prayer, the appellant prays for the appeal to be
allowed with costs and for the order of the court a quo to be set aside and
substituted with an order dismissing the application with costs.
Counsel for the appellant submitted that the appellant is a
creature of statute and that it is in the exercise of its statutory, as opposed
to its administrative, functions that it determines, through its Senate, the Degrees,
Diplomas and other programmes that it offers and the contents thereof.
He cited sections 11 and 15 of the University of Zimbabwe
Act [Chapter 25:16] in support of his submission.
He also submitted that the relationship between the
appellant and students is not purely contractual but is also governed by
administrative rules. He submitted that Degree content and other related issues
are not contractual issues but are issues for the appellant's Senate to deal
with and that in casu the Senate had made an error; the question then arising
being whether the appellant should be held to the error.
It was counsel for the appellant's further submission that
the error that he was referring to was stated in the appellant's Vice
Chancellor's opposing affidavit in the court a quo as being an error in the
admission letter which referred to a post-graduate diploma when this was not in
the contemplation of the parties at the time of offer and acceptance. The
respondents had applied for a Diploma in Law (Conciliation and Arbitration) and
not a post graduate diploma. He submitted that, as stated by the Vice
Chancellor, the error was a result of some “stereotyped minds” in the
University Administration system who, unfortunately, did not care to verify the
correctness of the diploma title as aptly described in the advertisement. He
further submitted that there is a caveat in clause 9.1 of the “REGULATIONS GOVERNING THE POST GRADUATE
DIPLOMA IN LAW (CONCILIATION AND ARBITRATION)”, (the Regulations) which reads:
“9 CLASSIFICATION
9.1 The classification of the Diploma shall be done in
accordance with University of Zimbabwe regulations.”
Counsel for the appellant went on to submit that subjects
such as conciliation, mediation, and arbitration fall within the sphere or
domain of Alternative Dispute Resolution (ADR) and not Law. He made further
reference to para 2.1 of the Regulations Governing the Post Graduate Diploma in
Law (Conciliation and Arbitration) which provides:
“2. ADMISSION
CRITERIA
2.1 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. Candidates
with first degrees in other disciplines may be considered if they have achieved
an appropriate academic standard or have relevant professional experience and
work accomplishments in the proposed field of study on such conditions as
Senate may specify. Further, a person who holds any other academic or
professional qualifications which Senate have approved may be admitted to the
Diploma.”
He further submitted that whilst the appellant readily
accepts that an embarrassing situation has arisen, the respondents were aware
that the invitation to apply stated that what was being offered was a diploma
and that is what was intended by the appellant when it conceived the programme.
It was counsel for the appellant's submission that the
matter be referred back to the appellant for it to hear and consider the
respondents' representations and take corrective action and thereby protect its
reputation. In this regard he referred to ERF 167 Orchards v Great Johannesburg
Metropolitan Council 1999 (1) SA 104 (S).
It will be recalled at this juncture that in its Notice of
Appeal the appellant prayed for its appeal to be allowed with costs and for the
order of the court a quo to be set aside and substituted with a dismissal of
the application with costs.
Counsel for the appellant finally submitted that no one,
the respondents included, can have a legitimate expectation for something that
is contrary to law or to prevent a functionary from exercising its lawful
functions. He referred the Court to University of the Western Cape & Others
v Member of Executive Committee for Health and Social Services & Others
1998 (3) SA 124 (C).
Counsel for the respondents submitted that the narrow issue
that disposes of this matter is whether or not the court a quo properly
exercised its discretion in interfering with the appellant's authority or
exercise thereof. It was his submission that the court a quo was alive to the
principle that courts are loathe to interfere with administrative authority and
also to the exception to that principle to the effect that where an
administrative body exercises its authority whimsically or capriciously, the court
can interfere.
Regarding the submission by counsel for the appellant that
the matter be referred back to the appellant, counsel for the respondents'
response was that the court a quo, in the exercise of its discretion, did not
find this to be a proper course to take in the circumstances of this case. He
also submitted that the issue of error was raised in the court a quo but it
found that it was not a justus error. He further submitted that he conceded
that the appellant, being the offeror of the course, is in a better position
than the court to grant the qualification, but the respondents' disgruntlement
was caused by the way in which the appellant handled the matter. He highlighted
that in the court a quo the appellant sought the dismissal of the respondents'
application with costs.
A question was posed to counsel for the respondents' by the
Court whether an order by the court a quo to refer the matter back to the
appellant would tie the appellant's hands in correcting the error by recalling
all its degrees.
In response, counsel for the respondents' submitted that a
referral back to the appellant by the court a quo would not tie the appellant's
hands and that the appellant would have to exercise its functions or authority
properly.
The court a quo exercised its discretion in terms of section
14 of the High Court Act [Chapter 7:06] which provides:
“The High Court may, in its discretion, at the instance of
any interested person, inquire into and determine any existing, future or
contingent right or obligation, notwithstanding that such person cannot claim
any relief consequent upon such determination.”
The appellant is of the view that the court a quo
misdirected itself by failing to take into account the fact that the conferment
of diplomas, degrees and honours is a complex process which is done by the
appellant through its Chancellor, Council and Senate. It is also of the view
that the court a quo erred in granting the order sought, in the face of sections
7 and 13 of the University of Zimbabwe Act [Chapter 25:16]. The sections
provide as follows:
“7. The Chancellor
The Chancellor shall be the chief officer of the University
who shall have the right -
(a)…,.
(b) On the recommendation of the Council and the Senate, to
confer degrees, diplomas and other awards and distinctions of the University
and to withdraw or restore any such awards.”
“13. Powers of the Council
Without derogation from the generality of any other powers
conferred on the Council by this Act, the Council shall have the following
powers –
(a)…,.
(b) To receive recommendations from the Senate for the
conferment, withdrawal or restoration of degrees, including honorary degrees,
and diplomas and other awards and distinctions of the University and, if
approved, to submit them to the Chancellor.”
It is the appellant's contention that the court a quo
misdirected itself in substituting the appellant's decision to withdraw the
post graduate diplomas when the withdrawal was solely governed by the
appellant's administrative Board.
The issue for determination in this matter is whether or
not the court a quo properly exercised its discretion when it interfered with
the appellant's decision to confer on the respondent's Diplomas instead of Postgraduate
Diplomas.
In their heads of argument filed of record, both parties
are agreed that this is an issue for determination by this Court. The
appellant's heads of argument, however, raise a second issue couched as:
“whether the court a quo properly assessed
the effect of the advertisement sent out by the appellant as well as the
responses thereto by the respondents.”
In my view, this need not be a stand-alone issue but can,
and will be sub-sumed in the determination of the first issue identified.
Without reproducing the court a quo's detailed examination of the facts, the following snippets
or pieces of undisputed facts will show how and why the court came to the
conclusion that it did.
Although the advertisement flighted by the appellant did
not describe the programme as a Post-Graduate Diploma in Law, under entry
requirements against the Diploma in Law, the advertisement stated:
“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.”
The respondents responded to the advertisement and applied.
They were accepted. The acceptance letter has already been quoted earlier in
this judgment…,. It will therefore not be necessary to repeat its contents.
Suffice to state that it informed them of their admission to a post graduate
diploma course.
The student enrolment form had the denotation “PDL” for Post Graduate Diploma
in Law with the code for each subject in the course starting with the letters
“LLD.” That is the code that the respondents filled in for the course subjects.
The Faculty signed, thereby giving the requisite departmental and Faculty
approval for the course of study.
The whole programme was done over two semesters. The
results slips for the two semesters had the following heading:
“EXAMINATION RESULTS
FOR 2011 SEMESTER…,. PDL POST GRAD DIPLOMA IN LAW (CONCILIATION &
ARBITRATION).”
In addition to the student enrolment form there was also
another form titled:
“POSTGRADUATE
ADMISSION APPLICATION FORM”
All the application forms handed to the respondents had “PDL” inscribed by the appellant,
in long hand, on the top right hand corner. The student identity documents
issued for those doing the course had “PDL”
inscribed on them.
It is not disputed that “PDL” stands for “Post Graduate Diploma in Law.”
Also issued to the respondents was a document titled: “REGULATIONS GOVERNING THE POST GRADUATE
DIPLOMA IN LAW (CONCILIATION AND ARBITRATION).”
The document, under the heading “ADMISSION CRITERIA” 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 also state, in paragraph 2.3, that the “Senate
may, in advance, approve an individual course or courses offered by another
university, as a course which, if completed, will allow credit for and
exemption from a course prescribed for the Postgraduate Diploma in Law.”
Paragraph 9.1 then provides that “the classification of the
Diploma shall be done in accordance with University of Zimbabwe Regulations.”
Paragraph 3 proceeds to state:
“3. COURSES UNDER THE PROGRAMME
3.1 The following shall be the Post Graduate Diploma in Law courses:…,.”
The course outlines and course objectives that were
presented to the respondents by the lecturers in the various departments, for
the various subjects to be taught all had “POST
GRADUATE DIPLOMA IN LAW” as part of the headings.
All examination papers were marked “POST GRADUATE DIPLOMA IN LAW (CONCILIATION AND ARBITRATION.”
On graduation day, the Dean of Law presented to the
Chancellor graduands for the POST
GRADUATE DIPLOMA IN LAW (CONCILIATION AND ARBITRATION) whereupon the
respondents were capped by the appellant's Chancellor.
After graduation, some of the participants in the programme
collected their academic transcripts showing the list of subjects that they had
passed as well as the grades that they had attained. The transcripts were
marked “POST GRADUATE DIPLOMA IN LAW
(CONCILIATION AND ARBITRATION.”
Three graduates from the respondents' class collected their
certificates. The designation on them, as in the certificates for students in
previous intakes who attended and successfully completed the same programme
with the same content in the preceding years, was “POST GRADUATE DIPLOMA IN LAW (CONCILIATION AND ARBITRATION).
It was only when the respondents went to collect their
academic transcripts and/or certificates that the appellant claims that it
realised that there was an error in the admission letter referring to a Post
Graduate Diploma in Law as it was only a Diploma in Law (Conciliation and
Arbitration) that was in the contemplation of the parties at the time of offer
and acceptance.
The prejudice occasioned to the respondents by the
appellant's decision is also exhibited by their undisputed averments in the
following respects. The first respondent secured funding to embark on the
programme from his employer on the basis that it was post-graduate diploma.
During the course of the programme, he diligently furnished his employer with
progress statements by way of semester results which showed that he was
studying for a postgraduate diploma. Other respondents secured employment on
the strength of a result statement which consolidated all the results for the
programme and indicated that they were for a post graduate diploma that had
been successfully completed.
The court a quo, after carefully scrutinising all these
factors in detail, found that the appellant's conduct was irrational. The
learned judge found that the decision to withdraw the “postgraduate” designation from the diploma for only a section of
the students in the respondents' class could not possibly be blamed on an error
by 'stereotyped minds' in the appellant's administration as claimed by the
appellant. He found that the purported downgrading of the course by the
appellant to a diploma was irrational in the Wednesbury sense and granted the
relief sought by the respondents.
The term “Wednesbury unreasonableness” refers to one of the
common law grounds of judicial review of administrative action as formulated in
the case of Associated Provincial
Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223. It denotes a
reasoning or decision that is so unreasonable that no reasonable person acting
reasonably could have made it.
The court a quo relied on, amongst other authorities,
Affretair (Pvt) Ltd & Anor v M K Airlines1996 (2) ZLR 15 (S) wherein McNALLY
JA quoted the following excerpt from BAXTER, Administrative Law…,:
“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
Legislature." 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.”
The learned author also stated that a court will normally
interfere in the sphere of practical administration only if:
(a) The end result is a foregone conclusion and it would be
a waste of time to refer the matter back.
(b) Where further delay could prejudice the applicant.
(c) 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.
(d) Where the court is in as good a position as the
administrative body to make the decision
The court a quo found that all the four criteria were met
and proceeded to substitute the decision of the administrative authority.
The learned judge found that the case of Mhanyami Fishing & Transport Co-operative Society Limited v Kubatana Nharira
Fishing Co-operative Limited & Others
HH92-11 was distinguishable. This was on the basis that the court therein
found itself unable to substitute its own decision for that of the Parks
officials for the reason, and rightly so, that there was not sufficient
information placed before it in order for it to grant the licences that were
sought.
He found that in Gurta AG v Afaras Mtausi Gwaradzimba NO
HH175-14, the court rightly substituted its decision for that of the
administrative functionary after setting aside the functionary's decision as
all the four criteria listed by the author in BAXTER, Administrative Law,
existed.
Before us, the case of Potwana v University of Kwazulu
Natal (5347/2012) [2014] ZAKZHC 1 (24 January 2014) (unreported judgment of the
High Court of KwaZulu Natal, South Africa) was cited in the appellant's heads
of argument with special reliance being placed on the following portion of
paragraph 33 which reads:
“There is indeed authority that Courts have long deferred
to universities' decisions to expel students on grounds of academic
misconduct. Ms Gabriel referred me to a journal article which cited the
decision of Board of Curators on University of Missouri v Horowitz [1978] USSC
31; 435 U.S. 78 (1978) where the Supreme Court held [at p. 91] that 'judicial
interposition in the operation of the public school system of the Nation raises
problems requiring care and restraint'. The focus of the Court's attention
was directed more at the students'
rights of procedural fairness. Once this threshold was satisfied, the Court
found no basis to interfere in the university's decision.”
The underlined portions of the excerpt above were omitted
from the quote as presented in the appellant's heads of argument. The omission
of the first underlined portion may not be of any moment in the proper
understanding of the principle sought to be leant on. It therefore need not
detain us. It is different with the second underlined portion, and particularly
so with the portion that is not only underlined but also italicised. My
understanding of this portion of the quoted passage is that once the threshold
of the students' rights of “procedural fairness” was reached in that case, the
court found that it had no basis to interfere in the decision of the
university.
In my understanding of the court a quo's judgment (in
casu), the court went beyond procedural fairness and addressed the substantive
fairness of the appellant's decision. It addressed the University's substantive
decision itself.
A reading of Potwana v University of Kwazulu Natal
(5347/2012) [2014] ZAKZHC 1 (24 January 2014) also shows that the position in
South Africa might be slightly different from ours. It appears that the courts
in South Africa can interfere with the decisions of an academic Board. The case
makes it clear that in a situation where a university decides to withdraw a
degree or a diploma, the action has to be sanctioned by a court. The issues for
determination by the court in that matter were stated in para 24 as;
(i) Firstly, whether the University of KwaZulu Natal had
the power, in the absence of any express legislative provision, to withdraw the
applicant's degree, without an application to court; the inquiry being said to
be based on the common law position.
(ii) The second was stated to be whether the provisions of
the Higher Education Act No.101 of 1977 could be interpreted in a manner so as
to confer on the University authority to withdraw degrees in the absence of an
express authority to do so.
In casu, the court a quo was asked to exercise its
discretion in terms of section 14 of the High Court Act [Chapter 7:06], and
this Court may only interfere with the decision if the learned judge a quo
failed to exercise his discretion judiciously.
The Potwana v University of Kwazulu Natal (5347/2012)
[2014] ZAKZHC 1 (24 January 2014) case is thus not of any significant
assistance to the appellant. The procedural unfairness attendant to this matter
is in addition to the substantive unfairness of the appellant's decision and
therein lay the justification of the court a quo's exercise of its discretion.
In casu, despite the advertisement referring to a Diploma,
the acceptance letter that was issued to the respondents was to the effect that
they had been admitted to a Post Graduate Diploma and they accepted the offer
by following or meeting the conditions set out in the acceptance letter. As
already seen above, literally all the subsequent documents and conduct
thereafter referred and related to a post-graduate diploma. In any event, the
advertisement gave, as the entry requirement, a good 'first degree.' The
diploma that was being offered could therefore only be a Post Graduate Diploma
regard being had to the definition of the word or phrase “post graduate.”
The Oxford English Dictionary gives the meaning of 'postgraduate'
as “relating to or denoting a course of study undertaken after completing a
first degree.”
Importantly too, it was only a year later, and after the
public and obviously joyous graduation of the respondents, that the appellant
purported to unilaterally effect the downgrading and that being done to some
and not all the students in the respondents' class.
Furthermore, the respondents were not heard before the
decision was made, thus violating the audi alteram partem rule. In Taylor v
Minister of Education and Another 1996 (2) ZLR 772 (S)…, the following was
stated:
“The maxim, audi alteram partem, expresses a flexible tenet
of natural justice that has resounded through the ages. One is reminded that
even God sought and heard Adam's defence before banishing him from the Garden
of Eden. Yet the proper limits of the principle are not precisely defined. In
traditional formulation, it prescribes that when a statute empowers a public
official or body to give a decision which prejudicially affects a person in his
liberty or property or existing rights, he or she has a right to be heard in
the ordinary course before the decision is taken. See Metsola v Chairman,
Public Service Commission & Anor 1989 (3) ZLR 147 (S) at 333 B-F.”
The respondents had a right to be heard before an adverse
decision affecting them was made. See Guruva v Traffic Safety Council of
Zimbabwe SC30-08.
They were not accorded this right by the appellant.
They therefore decided, in the circumstances, to approach
the High Court in terms of section 14 of the High Court Act [Chapter 7:06] for
a declaratory order. There was no impediment to them adopting this course of
action. In Bulawayo Bottlers (Pvt) Ltd v Minister of Labour, Manpower Planning
and Social Welfare & Ors 1988 (2) ZLR 129, the following was stated:
“…, my understanding of the law is that there is nothing to
prevent the petitioner from applying for and obtaining a declaratory order,
even if it was open to him to commence review proceedings, provided that the
court is satisfied that the applicant is an interested person in an existing
future or contingent right or obligation and that the case is a proper one for
the exercise of its discretion in granting the order…,.”
On the facts before the court a quo, can the court be said
to have exercised its discretion improperly?
I think not.
In our view, the irrationality of the appellant is only too
blatant. It is palpable. The unfairness of the appellant's decision and action
has not, and cannot, be justified on the facts of this case. The lower court
cannot, in the circumstances, be said to have failed to exercise its discretion
judiciously. The learned judge was alive to the applicable law in matters of
this nature and of the undesirability and reluctance of the courts to take over
functions of an administrative authority. It was also alive to the permissible
circumstances for a court's interference which circumstances it found to be met
and it thereafter proceeded to interfere.
The submission made before us that the matter be referred
back to the appellant finds no justification. This is further compounded by the
appellant's failure to explain the basis of the difference in treatment between
the respondents and their classmates whose postgraduate diplomas the appellant
has not sought to downgrade to diplomas.
The appeal is without merit. The settled grounds for
interference with the exercise of judicial discretion have not been
established. Costs will follow the outcome.
Accordingly, it is ordered as follows:
“The appeal is dismissed with costs.”
