On
2 December 2016 I granted a provisional order restraining the
respondents from preventing the applicant sitting an examination that
was scheduled for 5 December 2016.
At
all relevant times the applicant was a student with the first
respondent [“the
University”].
When she launched her urgent chamber application the examination in
question was just three court days away. She was now in the fourth
and final year of her degree course. Her application was for a
provisional order restraining the University from barring her from
writing the examination pending a final order directing the
University to register her for the completion of the degree. The
final order sought seemed confused. But that was not of immediate
concern.
The
applicant's case was that some six court days before that
examination, she had been shocked to learn, quite by chance, that her
name had been removed from the list of those students scheduled to
sit. She had gone to the University's administration offices to
check on the details and logistics of the examination. She says when
she enquired as to why her name had been deleted, all she ever got
were some verbal indications that she had an outstanding course from
Part One. Her degree was a four year course, broken down into two
semesters per year.
The
details of the applicant's case were these.
She
enrolled with the University in August 2013 and commenced her studies
as a full time student in the Bachelor of Business Studies [Honours]
Marketing. She failed a course in the second semester of the first
year. However, the University allowed her to proceed to the second
year. She also failed a course in the second semester of the second
year. But, again, the University allowed her to proceed to the third
year. The third year was the one for industrial attachment. She
successfully completed it. In August 2016 she went back to the
University and enrolled successfully for the fourth year. She paid
the requisite fees and completed all the other registration
formalities.
The
applicant says after registering for the fourth year she religiously
attended all the course lessons and tutorials. She did all the
assignments and passed them. All along she had been preparing for the
examination aforesaid. Her discovery that she was no longer on the
list was on 25 November 2016. Her urgent chamber application was
filed on 29 November 2016.
The
applicant's argument was that the respondents should not have
unilaterally de-registered her without first having afforded her the
chance to be heard. She said the University's regulations did not
provide for de-registration; that she ought to have been furnished
with written reasons for the deregistration and that given that she
had progressed to the fourth year and completed her course work and
all the registration formalities, the University must be deemed to
have waived its entitlement to require strict compliance with any
such of its regulations as might have required her to pass all her
courses before proceeding to the final year. She said she would
suffer irreparable harm if she was not allowed to sit the pending
examination.
The
respondents opposed the application.
And,
as if points in
limine
are a mandatory ritual, it was argued
that
the matter was not urgent. The University's Regulation 8.3 from its
Prospectus was quoted. It reads:
“Normally…,
a student will not be allowed to proceed from one Part
to the next without having registered and passed formal examinations
in courses in the preceding Part
and having satisfied all prerequisites for proceeding as may be set
out by the Faculty Regulations. No student shall be allowed to
proceed from Part
Three
to Part
Four
without having passed all the required Part
One
courses.”
The
argument on urgency was that when she enrolled for her first year of
study [i.e. in August 2013] the applicant knew, by reason of that
Regulation, that she would not be permitted to proceed into fourth
year if she had uncompleted courses from any preceding year. At best,
the need for her to act had been then. At worst, the need to act had
been on 23 September 2016. It was argued that on that date the third
respondent herein, the Registrar, had issued a notice to all the
students. It read:
“All
students are reminded of General Academic Regulation 8.3 for
undergraduate studies which stipulates that a student cannot proceed
to register for Part
Four
courses without having cleared required Part
One
courses. All students are expected to comply with this Regulation.
Any
student who had breached this Regulation is required to deregister
Part
Four
courses. Those who ignore this Regulation shall be made compliant
administratively.”
At
the hearing, counsel for the respondents advised that the notice was
posted to all the halls of residents. But the applicant claimed she
was seeing the notice for the first time during the hearing. She
denied that it had been posted to the halls of residents. Counsel for
the applicant pressed that in the absence of some proof of service,
the notice was undoubtedly a forgery.
I
dismissed the respondents' point in
limine
and ruled that the matter was urgent. Going by the seminal test in
Kuvarega
v Registrar-General & Anor
1988
[1] ZLR 188 [H]
I considered that the need for the applicant to act had arisen on 25
November 2016.
In
the absence of evidence aliunde,
I could not accept that the applicant had seen, or must be deemed to
have seen, the third respondent's notice. I did not necessarily buy
the audacious argument that the notice was a forgery. What weighed
heavily with me was that the applicant had, all along, anticipated
sitting the examination scheduled for 5 December 2016. The
respondents had, by their own conduct or inaction, fed that
expectation. Among other things, they had allowed her to carry
forward failed courses for the first and second years. She had
successfully enrolled for the fourth year. She had attended lectures
for that year. The University had accepted her fees for it. She had
completed the course work. The University had marked and passed her.
She had been entered for the final examination. Only at the eleventh
hour was she removed from the list of those to sit the examination.
She was not advised in person. She had discovered it through her own
effort - and quite by chance. That was on 25 November 2016. That, to
me, was when her clock had begun to tick. On 29 November 2016, i.e.
less than four days later, her application was lying in the Registry.
The
matter was classically urgent.
The
arguments for and against urgency formed the bulk of the arguments on
the merits. The respondents' major point was that the applicant had
failed to establish a prima
facie
right to sit those examinations given that she was unqualified by
reason of the uncompleted courses from the first and second years.
The
respondents also argued that the applicant had taken advantage of the
loopholes in the University's registration system. Students enrol
online. Ineligible students are not immediately picked up. It was
said the applicant knew that. She knew she was disqualified to
proceed to the fourth year if she had uncompleted courses from the
preceding years. She did not need the respondents to tell her that.
It was all there in the Prospectus.
The
respondents further argued that the applicant would suffer no
irretrievable harm. It was common cause that she was scheduled to
re-write the failed courses on 12 December 2016. If she passed them
she would then legitimately enrol for the fourth part of her degree.
I
was not persuaded by the respondents' argument.
The
requirements for an interdict are well known. The applicant must show
a prima
facie
right having been infringed, or about to be infringed even if it be
open to some doubt; an apprehension of an irreparable harm if the
interdict is not granted; a balance of convenience favouring the
granting of the interdict, and the absence of any other satisfactory
remedy: see Setlogelo
v Setlogelo
1914
AD 221;
Tribac
(Pvt) Ltd v Tobacco Marketing Board
1996
(1) ZLR 289 (SC);
Hix
Networking Technologies v System Publishers (Pty) Ltd & Anor
1997
(1) SA 391 (A);
Flame
Lily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd and
Anor
1980
ZLR 378;
and Universal
Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor
2000
(1) ZLR 234 (H).
As
said before, the respondents' cumulative conduct, starting from
allowing the applicant to progress to the final year despite her
uncompleted courses, culminating in them, inter alia, accepting her
fees for the fourth year; allowing her to register for the fourth
year, and allowing her to complete the course work, which they
marked, must have created a legitimate expectation in the mind of the
applicant that she had been granted the dispensation to sit her final
examination despite her carry overs.
Even
without delving into the complex question of waiver, by its own
wording, Regulation 8.3 did not seem to be cast in stone. The word
“normally,”
which prefaces the substantive part of the Regulation, evidently
referred to the ideal situation, the norm, the rule. But, invariably,
to every rule there are exceptions. The applicant was not saying she
was the exception. She was saying the respondents had relaxed the
rule in her case.
Admittedly,
the second part of Regulation 8.3 imports a more forceful or
commanding meaning. It says no
student shall
be allowed
to proceed from Part Three to Part Four without having passed all the
required Part One courses. But, this is not addressing anything about
the right of a student, who is now in Part Four, to sit final course
examinations. It is addressing the right, or the ineligibility
thereof, to proceed to the fourth part - something which the
respondents had already condoned in the case of the applicant.
In
all this, it could not be argued, intelligibly, that the applicant
did not have a prima
facie
right. She did. The right might have been open to some doubt. But
that would be of little concern where all that was sought was an
interim relief.
If
the registration process was faulty, as the respondents argued, then,
in my view, it was unfair to hold it against the applicant. But,
again, it was difficult to accept that the system was faulty. The
applicant did not suddenly find herself in the fourth year. She had
steadily been allowed to progress ahead despite her having failed
some two courses way back in Part One and Two.
The
applicant's fear that she could, after all those years, suddenly
miss the forthcoming examination, was more than just an apprehension
of an irreparable harm. It was a harm that was real.
The
greatest consideration by myself, when I granted the provisional
order, was that the balance of convenience eminently favoured the
applicant. Here was somebody who was in the final lap of her
four-year degree course. The crown was now within grasp. She had done
everything required to attain it except for those two courses that
she had failed in the lower parts. It was not as if in writing the 5
December 2016 examination the crown was automatically guaranteed. It
was common cause that she was scheduled to re-write those outstanding
courses on 12 December 2016. Furthermore, the respondents held all
the aces. If, for any reason, she failed to fulfil all the
requirements for the degree, including those two uncompleted courses,
the respondents could always withhold her certificate.
On
the other hand, if the applicant missed the 5 December 2016
examination there was no telling when next she would sit it.
Counsel
for the respondents fumbled for an answer. Doubtless, all the
applicant's four years of study would go to waste. All the money
she had paid for tuition and other things would go down the drain.
She would not be able to retrieve all those years lost. It seemed
such a cruel fate. It would be the height of injustice.
Admittedly,
all educational institutions strive for excellence in all their
endeavours.
In
casu,
the right or duty of the University to uphold and maintain academic
excellence, and all else that it offers, was never in question. The
courts would not interfere with what would be the prerogative of the
University's Senate, except in cases of manifest injustice.
However, there was nothing the provisional order sought by the
applicant would do to compromise the University's set goals; its
core-values or its core-mission. There was no other remedy that would
effectively counter the threat posed by the actions of the
respondents to bar the applicant from sitting an examination that she
had sweated for in all those years.
It
was for the above reasons that I granted the provisional order.
