MATHONSI
J: The
concept of administrative justice is one which chimes to a certain
degree with the notion that administrative authorities which are
charged with the responsibility and power to take administrative
action affecting the rights, interests, or legitimate expectations of
any person should act lawfully, reasonably and in a fair manner,
within a reasonable period. Where it has taken action, it must
supply written reasons within a reasonable period. See Mabuto
v
Women's
University in Africa and Others
HH 698/15.
In
fact administrative justice is now embedded in our constitution as
s68 (1) of the constitution provides that every person has a right to
administrative conduct that is lawful, prompt, efficient, reasonable,
proportionate, impartial and both substantively and procedurally
fair. In addition, s3(1) of the Administrative Justice Act [Chapter
10:28] provides that an administrative authority which has the power
and responsibility to take any administrative action affecting the
rights, interests or legitimate expectations of others shall act
lawfully, reasonably and fairly within a reasonable period.
The
three applicants are students at the second respondent university
with the first applicant being a final year student of Politics and
Public Management while the second and third applicants are second
year students majoring in development studies. On 22 April 2016 they
were each served with a letter of suspension from the university
dated 11 April 2016 and signed by the first respondent.
The
suspension letters which are worded the same read:
“RE:
SUSPENSION FROM MIDLANDS STATE UNIVERSITY
It
has come to my attention that you breached Ordinance No. 2 of 2000 in
that you are alleged to have posted a message on a Social Medial
Platform Whats App calling on other students to go on an illegal
demonstration. In terms of section 8(3) (d) of the University Act, I
do hereby suspend you from the University pending your appearance
before the Student Disciplinary Committee to answer the above stated
charges. During the period of your suspension you are not allowed to
visit any of our campuses without my permission and a breach of this
condition shall constitute another act of misconduct for which you
will be duly charged.
Yours
sincerely
Professor
N. M Bhebhe
Vice
Chancellor.”
That
way the three applicants were excluded from the University and have
not attended any lectures or participated in any activity pertaining
to their University education. Significantly, there is no indication
in the suspension letters what the duration of the suspension is and
when the disciplinary committee will sit to determine their cases. A
month has since lapsed since the administrative action was taken and
still nothing has happened. The applicants remain on suspension.
Meanwhile life on campus goes on with the other students enjoying the
benefit of education to the exclusion of the three applicants, who
have now filed this urgent application seeking the following relief:
“TERMS
OF THE FINAL ORDER SOUGHT
IT
IS HEREBY ORDERED THAT (SIC)
That
you show cause to this Honourable Court why a final order should not
be made in the following terms;
FINAL
ORDER (SIC)
-
That
the decision of 1st
respondent in his capacity as the Vice Chancellor of the second
respondent to suspend all the three applicants be and is hereby
declared unlawful and is accordingly set aside.
-
That
the letters of suspension be and are hereby declared null and void
and of no force or effect and are hereby set aside.
INTERIM
RELIEF GRANTED
That
pending the confirmation of the Provisional Order the applicants are
granted the following relief (sic)
-
That
the decision by the 1st
respondent to suspend all three applicants dated 11th
April 2016 for alleged breach of unspecified sections of Ordinance
No 2 of 2000 be and is hereby suspended.
-
That
the decision to bar the applicants from visiting any of the
respondent's campuses be and is hereby set aside.
-
Pending
finalization of this matter 1st
and 2nd
respondents be and are hereby ordered to allow all three applicants
to sit and write their end of semester examination (s).”
The
applicants admit having received a WhatsApp message encouraging
students to
attend
a protest in Zvishavane at the beginning of the semester on 17
February 2016 to express displeasure at the University's decision
to open a satellite campus in Zvishavane for a number of reasons set
out in the message. The message had gone viral on social media and
they say all that they did was to pass it on to their friends. This
was in February 2016.
When
the semester commenced there was no such protest and nothing really
came out of that message. Indeed the University authorities also did
not act upon it until 22 April 2016, more than two months later, when
they served suspension letters on the applicants, which suspensions
have not been prosecuted. As it is now, end of semester examinations
have commenced having started on 19 May 2016. The suspensions mean
that the applicants cannot take those examinations which is
prejudicial to them in a big way. Failure to take the examinations
would mean that they would have to repeat and would be unable to
progress to the next stage of their studies. In the first
applicant's case, he will not graduate.
Section
8(3)(d) of the Midlands State University Act [Chapter 25:21]
provides:
“Subject
to subsections (4) and (5), the Vice Chancellor may expel or suspend,
indefinitely or for such period as he may specify, any student or
group of students.”
Subsection
(4) of that section which is of peremptory application makes it clear
that the Vice Chancellor shall not expel a student for misconduct
unless the student has been found guilty of misconduct by the Student
Disciplinary Committee in terms of s27, while subsection (5) requires
any decision of the Vice Chancellor made in terms of subsection (3)
to be ratified by the University Council. We have not been told if
such ratification was done.
Mr
Jaravaza,
who appeared for the respondents, raised three points in
limine.
The first one is that the matter is not urgent because the
applicants have created the urgency. They received the suspension
letters on 22 April 2016 and did not do anything about them until
doomsday on 18 May 2016, 26 days later, when they filed this
application. I do not agree.
This
is a matter in which the first respondent exercised his power to
suspend the applicants in terms of s 8(3) (d) of the Act, a section
which allows him to suspend for an indefinite period. It cannot be
said that the need to act arose on 22 April 2016 because the
suspension was done pending the convening of a student's
disciplinary committee. Up to now that committee has not been
convened and on the face of it, one cannot say that the first
respondent has acted outside his powers.
In
fact it is the failure of the respondents act which is the source of
disquiet and has led to a complaint being made against the failure of
administrative justice as provided for in s3(1) of the Administrative
Justice Act as read with s68 (1) of the constitution. The challenge
brought by the applicants centres around the delay in convening a
disciplinary hearing until the examinations time arrived.
The
respondents are seeking to rely on their own default to deprive the
applicants a remedy, suggesting that the applicants have created the
urgency. While it is true that the applicants could have come to
court earlier in the circumstances, it is a matter in which I am
prepared to overlook that delay because the respondents contributed
to it. In any event, I have mentioned before that litigants appear
to have unduly blown the question of self-created urgency out of
proportion and attempted to give it a meaning which authorities have
not assigned to it. Courts of law have always appreciate that
litigants do not eat, move and have their being in filing court
process, if one may be allowed to borrow biblical language. They
have other things to attend to and in a case such as the present
where the respondents are the ones who have failed to act timeously
they cannot use that against the applicants. See The
National Prosecuting Authority
v Busangabanye
and Another
HH 427/15; Telecel
Zimbabwe (Pvt) Ltd
v Potraz
and others
HH 446/15.
It
is for that reason that I decided to exercise my discretion, for a
discretion it is to hear a matter as urgent, in favour of the
applicants.
But
then Mr
Jaravaza
was not finished. He submitted that the applicants' approach to
this court was incompetent by reason that they had not exhausted
internal or domestic remedies. He relied on the authority of Sithole
v Senior
Assistant Commissioner and Others
HB 17/10 where this court, per NDOU
J, pronounced
that a failure by the applicant, without good and sufficient cause,
to exhaust domestic remedies available to him is fatal to his
application and Moyo
v Forestry
Commission
1996 (1) ZLR 173.
Mr
Jaravaza
located the domestic remedies available to the applicants in the
suspension letters written by the first respondent where he states at
the end that:
“During
the period of your suspension you are not allowed to visit any of our
campuses without my permission and a breach of this condition shall
constitute another act of misconduct for which you will be duly
charged.”
He
submitted that the foregoing provision of the suspensions accorded
the applicants a domestic remedy before they could approach this
court for recourse. I do not agree. Indeed that argument is without
merit for two reasons. Firstly there is no remedy at all provided by
the cited portion of the suspension letters because it only allowed
the applicants to approach the Vice Chancellor if they desired to
visit the campuses. It is not a remedy against the suspension from
University studies and examinations.
Secondly,
while the Vice Chancellor is empowered to suspend a student, his
decision is subject to ratification by the University Council in
terms of subsection (5) of s 8 of the Act. Once the decision has
been ratified by the council it cannot be that of the Vice Chancellor
alone and he certainly cannot competently revise it without reference
to the council. In any event, domestic remedies envisaged by the law
are those which are available to the applicant by virtue of the
disciplinary procedure of the institution, not what the respondents
have sought to rely upon.
Finally
Mr
Jaravaza
submitted that the application must fail because the applicants
approached the court late when the examinations had already
commenced, when the door had already been closed. In the first
place, the applicants filed this application on 18 May 2016 before
commencement of the examinations on 19 May 2016. The delay in
hearing the matter was occasioned by the need to give the respondents
notice. In the second instance, only a few examinations, those for
19 May 2016, have been missed and there is still room to rectify that
by allowing the applicants to write supplementary examinations.
There is therefore no merit in the preliminary points taken.
I
have already made reference to the provisions of s 3(1) of the
Administrative Justice Act [Chapter 10:28] which require
administrative authorities to act lawfully, reasonably and fairly at
all times and to s68 (1) of the Constitution which makes it a
constitutional imperative for every person to receive prompt,
efficient, reasonable and impartial decisions in administrative
conduct. As started by MAKARAU
JP (as
she then was) in U-Tow
Trailers (Pvt) Ltd v City of Harare and Another
2009 (2) ZLR 259 (H) 267 F-G; 268 A –B, it is no longer business as
usual for all administrative authorities as there has been a seismic
shift in administrative law.
In
any event, apart from the right to administrative justice being a
fundamental right enshrined in the declaration of rights, Chapter 4
of the Constitution, the right to further education contained in s75
of the constitution is also a fundamental right. What has however
occurred in this matter is that those rights have been negated
through the conduct of the first respondent.
While
the first respondent has power to suspend a student, that power must
be exercised within the framework of the law, a law which recognizes
the right of the applicants to administrative justice, a concept
which is now embedded in our constitution. Its elements are that
official decisions must be lawful; rational in that they must comply
with the logical framework created by the grant of power under which
they are made; consistent, fair in that they should be arrived at
impartially in fact and appearance giving the affected persons an
opportunity to be heard; and be made in good faith in the sense that
the official making the decision must act honestly and with
conscientious attention to the task at hand having regard to how the
decision affects those involved. See Telecel
Zimbabwe (PVt) Ltd v Potraz and Others
HH 446/15.
It
was never the intention of the framers of s8 (3) (d) of the Act that
the first respondent would merely suspend students on unproven
allegations and then do nothing about the suspension even though the
section would seem to allow a suspension “indefinitely” Surely
an indefinite suspension without a hearing cannot be lawful. This is
particularly so where the suspension is to facilitate the convening
of a disciplinary committee to deal with the student.
In
my view the power of suspension should be exercised in accordance
with administrative justice. The delay in bringing the applicants
before a disciplinary committee offends against the element of
administrative justice requiring prompt, efficient and reasonable
conduct. This is so because you do not just send a student home
indefinitely while others are learning and in the process prevent him
or her from taking examinations. There was a failure of
administrative justice which has greatly prejudiced the applicants.
The
moment his preliminary points failed, Mr
Jaravaza
for the respondents conceded that the applicants are entitled to
relief on the merits. He added that, the respondents would like a
final order to be made as a provisional order would not serve any
useful purpose in the circumstances, a position which Mr
Chitere
for the applicants also embraced. For that reason, the grant of a
final order is by consent of the parties.
In
my view the concession by Mr
Jaravaza
was properly made. It occurs to me that there is a discernible
readiness to unnecessarily pull the trigger and in the process play
havoc to the constitutional rights of students. To begin with, the
whatsapp message complained of cannot possibly be said to be
offensive at all even if it had been generated by the applicants, of
which it was not. What the author was doing was to mobilise support
among students to protest against what was considered as an
unreasonable decision by the University authorities to shift students
to Zvishavane a little town with inadequate infrastructure and the
scarcity of accommodation.
So
what? The decision which was being resisted was not made by God but
by humans who had not consulted the affected individuals. Zimbabwe
being a democratic country it was therefore the democratic right of
those affected to protest and demonstrate their revulsion at such a
decision. How then could it be said that the mobilistaion was
“illegal.”? Section 61 of the constitution guarantees freedom of
expression, that is to say, that individuals have the freedom to
seek, receive and communicate ideas and other information. Why then
should a University be seen to be working to stifle student rights
when it was established with progressive objectives including:
“---
the advancement of knowledge, the diffusion and extension of arts,
science and learning, the preservation, dissemination and enhancement
of knowledge that is relevant for the development of the people of
Zimbabwe through teaching and research and, so far as is consistent
with those objects, the nurturing of the intellectual, aesthetic,
social and moral growth of the students at the University.”
The
second respondent should not only be a doyen for intellectual
interaction but also a wonderful laboratory for freedom of expression
and free flow of information. Those values are suppressed if the
authorities remain engrossed in a time capsule propagating archaic
controls and methods of instruction where students are removed from
campus for expressing their views. It is unthinkable that someone
can still sleep soundly at night after excluding a student from
school and sitting for an examination when that student has not been
found guilty but is accused of sending a harmless whatsapp message.
In
the result, it is ordered that:
1. The
decision of the first respondent to suspend all the three applicants
by letters dated 22 April 2016 for alleged breach of sections of
Ordinance No 2 of 2000 is hereby suspended.
2. The
decision to bar the applicants from visiting any of the respondents'
campuses is hereby set aside.
3. The
first and second respondents are hereby directed to allow all the
three applicants to sit and write their end of semester examinations.
4. The
first and second respondents are directed to allow the applicants to
take those examinations which they have already missed during the
holding of the university supplementary examinations.
5. The
first and second respondents may continue with the disciplinary
action against the applicants, if any, not before the expiration of a
period of 14 days after the completion of the supplementary
examinations.
6. Each
party shall bear its own costs.
Chitere,
Chidawanyika and Partners,
applicants' legal practitioners
Dzimba,
Jaravaza and Associates,
respondent's legal practitioners
