MATHONSI
J: The remarks of 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 about the effects of the
introduction of the Administrative Justice Act [Chapter
10:28]
resonate with the problem presented by this case. The learned Judge
President remarked;
“That the promulgation of the
Act brings in an era in administrative law in this jurisdiction
cannot be disputed. It can no longer be business as usual for all
administrative authorities, as there has been a seismic shift in this
branch of the law. The shift that has occurred is, in my view,
profound as it brings under the judicial microscope all decisions of
administrative authorities save where the provisions of s 3 (3) of
the Act, apply. On the basis of the foregoing, I find that the
decision by the first respondent summarily to terminate the lease
agreement between itself and the applicant was an administrative
action carried out by an administrative authority, empowered to do so
by the lease agreement between the parties. The Act applies to that
decision. The Act provides that an administrative authority which has
the responsibility or power to take any administrative action which
may adversely affect a right, interest or legitimate expectation of
any person shall, inter
alia, act reasonably
and in a fair manner. The Act proceeds to define what a fair manner,
for the purposes of the Act, entails and this includes adequate
notice of the nature and purpose of the proposed action and a
reasonable opportunity to make adequate representations, in my view,
an embodiment of the audi
alteram partem rule.”
In
fact s 2 of that Act gives a very wide definition of an
administrative authority. It provides,
“'administrative
authority' means any person who is –
-
an
officer, employee, member, committee, council, or board of the State
or a local authority or parastatal; or
-
a
committee, or board appointed by or in terms of any enactment; or
-
a
Minister or Deputy Minister of the State; or
-
any
other person or body authorised by any enactment to exercise any
administrative power or duty.”
Since
the pronouncement in U-Tow
Trailers (Pvt) Ltd v
City
of Harare and Another,
(supra)
was made, administrative law has evolved even more significantly in
that the concept of administrative justice has now received
constitutional recognition. Section 68 of the constitution which is
contained in the Declaration of Rights [Chapter
4]
provides:
“(1) Every person has a right
to administrative conduct that is lawful, prompt, efficient,
reasonable, proportionate, impartial and both substantively and
procedurally fair.
(2) Any person whose right,
freedom, interest or legitimate expectation has been adversely
affected by administrative conduct has the right to be given
promptly and in writing the reasons for the conduct.
(3) -------------”
The
concept of administrative justice includes the requirement that
official power affecting individuals must be exercised fairly in that
official decisions should be arrived at fairly, that is, impartially
in fact and appearance giving the affected person an opportunity to
be heard: Telecel
Zimbabwe (Pvt)Ltd v Postal and Telecommunications Regulatory
Authority of Zimbabwe and Others HH
446/15. It is the embodiment of the audi
alteram partem rule.
The
applicant enrolled as a Masters in Science (Development Studies)
student with the first respondent in January 2015. The University
gave her an admission letter on 21 January 2015. She paid part of her
tuition fees on 23 February 2015, she having paid $400-00 of the
requisite $1 100-00. She later made a “fees payment plan” which
was authorised or approved by the Finance Director of the University
on 4 June 2015. Earlier on she had been given a student ID Number
W150362.
Having
enrolled for the March 2015 intake of the University the applicant
was allowed to attend lectures fully between March and June 205 and
to write her course work assignments scoring very impressive marks
ranging between 66% and 84% in the 4 courses she was learning. The
applicant was scheduled to sit for her examinations commencing on 8
June 2015 but 2 days before that date, she was stopped dead in her
tracks by the University. The third respondent, who is the Deputy
Registrar – Academic of the first respondent advised the applicant
that she could not write her examinations because she had been
enrolled in error, and advised her to write a letter to the second
respondent, the Vice Chancellor if she wanted an official reason for
that decision.
Although
the applicant promptly wrote the require letter to the Vice
Chancellor on 9 June 2015, pleading her case, there was no formal
response from the respondents until 31 July 2015, almost 2 months
later, when she received the letter from the second respondent dated
23 July 2015. The letter stated that her case had been deliberated
upon fully by the senate, that she had applied for the degree
programme when she did not have “a good first degree”, that she
was given an admission letter on 21 January 2015, that she paid part
of her fees on 23 February 2015 at the bursar's office but had not
followed procedure in that she had not paid the full fees of $1
100-00 by 20 February 2015 as required, that she did not register as
a student during the registration period although she attended
lectures and as such:
“The senate's stance is that
you cannot continue with the programme with the Women's University
in Africa.”
Complaining
that the decision was taken without according her an opportunity to
be heard or make representations, that she was not given prompt and
written reasons for that administrative conduct and that she had a
legitimate expectation to be allowed to sit for her examinations and
to continue with her studies after being admitted the way she was,
the applicant now seeks a provisional order in the following:
“TERMS
OF FINAL ORDER (SOUGHT)
(That you show cause to this
Honourable Court why a final order should not be made in the
following terms-)
-
Respondents' decision to
withdraw the applicant's candidature be and is hereby set aside.
(ii) Costs shall be in the cause
INTERIM
RELIEF (GRANTED)
(Pending
determination of this matter, the applicant is granted the following
relief -)
1. Pending
the proper resolution of this matter by the respondent(s) it is
ordered that
(i) The
respondent(s) be and (are) hereby compelled to allow the applicant
access to the first respondent's premises and resources for
purposes of education until due process has been followed.
2. The
first respondent is hereby interdicted from in any way, negatively
interfering with the applicant's education, more particularly in
that the (first) respondent be and is hereby:
(a) Directed
to allow (the) applicant to write examinations for the purpose of the
Master of Science degree in Development Studies during the period
from 4th August
2015 (sic)
when students are writing supplementary examinations.
(b) Barred in any other way from
discriminating against (the) applicant before following proper and
due process in withdrawing (the) applicant's candidature.
3. The
respondent shall bear the costs of suit.”
Mr
Ndoro
who appeared for the respondents allowed Professor Nherera from the
University to address me on the reasons for the exclusion of the
applicant. Professor Nherera in essence confirmed all that the
applicant said in her founding affidavit, adding that although the
applicant was offered a place in the “offer letter” dated 21
January 2015 which was accepted by signing at the bottom as required
thereby completing a contract, she was still required to register as
a student but did not do so. He accepted that the University has the
habit of allowing students who have not registered to attend lectures
because of the harsh economic environment. In doing so, they would be
hoping that the student would be able to raise the fees in due cause.
He went on to say that even at the late stage of examinations, the
University would have allowed the applicant to register as a student
to enable her to obtain the biometric registration identification
required for entry in the examination, if she qualified.
Mr
Ndoro,
then submitted that the respondents had not accord the applicant a
fair hearing because she was not a registered student and was
therefore not entitled to a fair hearing. This is disturbing indeed
because Mr Ndoro
conceded that by accepting the offer as she did the applicant had
entered into a binding contract with the first respondent.
No
matter what the respondents say, there can be no dispute that they
admitted the applicant to the University to study for her chosen
degree programme. They went on to accept part of her fees and to
approve a payment plan in respect of the balance. They gave her a
student number before allowing her to attend lectures throughout the
period preceding the examinations, which is between March and June
2015. She was allowed to write her course work and was awarded good
marks for it. She was simply treated as a student of the university
thereby raising in her the expectation that she would not only
continue with her programme but also to sit for her examinations.
In
terms of s 3 (1) of the Administrative Justice Act [Chapter
10:28]an
administrative authority which has the responsibility or power to
take any administrative action affecting the rights, interest or
legitimate expectations of any person shall act lawfully, reasonably
and in a fair manner, within a reasonable period and where it has
taken action, supply written reasons within a reasonable period after
being requested to supply them. It therefore cannot be disputed that
the provision of the Act incorporates the traditional rules of
natural justice including the rule that a party should be heard
before a decision adversely affecting its rights is taken, the audi
altern partem rule.
In
the present case, having raised the expectations of the applicant,
the respondents went on to trample on her rights. She was withdrawn
on the eve of examinations without any formal reasons. When she
sought audience, the University Senate went on to deliberate on her
case in breach of the aud
ialteram partem
rule, and to arrive at a decision adverse to her that
notwithstanding. Even then, she was denied prompt written reasons. In
fact when the reasons came almost 2 months later other students had
written their examinations which presumably had been marked because
those who were not successful had a second bite at the cherry in
supplementary examinations set for 4 August 2015, just a few days
after reasons were given.
There
is therefore no doubt in my mind that the respondents have acted in
violation of the law to the prejudice of the applicant who, in terms
of s 75 of the constitution, has a fundamental right to “further
education”. It is for that reason that the court must step in to
promote the ideal of justice. As Morris Raphael Cohen put it in
Reasons
and Law
at pp 111 – 112 (quoted with approval in Cabs
v Chirocherwa
2001 (2) ZLR 452(H) 455 A – C);
“The problem of justice is that
of cleansing the social order of its black spots. This is an endless
as well as a difficult task because all we do is constantly befoul
by our inevitable errors and folly. But life would be unbearable
without the effort at purification. We must remember that whatever
our ideal of substantial justice, it is obviously incomplete unless
it includes the ways of bringing it about …………. Furthermore,
there can be no just order unless there is also what I have called
'formal' justice, i.e. a general determination on the part of
those who deal with the law to live up to its spirit, to carry out
not only its literal provisions but the ideal inherent in it.
Doubtless, the law will never, so long as it is administered by
human beings, be free from arbitrary will and brute force.
Nevertheless, it cannot function in an organized society without some
national effort at justice as an ideal harmony.”
Surely
it cannot possibly be fair or just to lead a student down the garden
path, to admit her into university and take her fees, to allow her
into lecture rooms and administer and mark assignments. When the time
comes to reap what she sow in examinations, to then prevent her from
sitting for those examinations and kick her out. It is not only
unjust and brazen in its effect, it is also a black spot in civilized
social order. If the first respondent had made a mistake in admitting
the applicant in the first place, it was too late at that stage to
recant that decision. In fact it was easier to accept the error,
swallow it and move on. Doing otherwise unduly upset the social order
to the prejudice of the applicant.
In
the result, I grant the provisional order as amended.
Zimbabwe
Lawyers for Human Rights,
applicant's legal practitioners
Ziumbe
& Partners,
respondent's legal practitioners
