PATEL
JA:
This
is an appeal against the judgment of the High Court setting aside the
decision of the appellant, made on 8 February 2018, ordering the
rewrite of an English language examination at Ordinary Level taken by
candidates in November 2017.
The
appeal is mounted against part of the judgment, in particular,
paragraph 2 of the operative order of the court a quo.
Background
The
appellant is the Zimbabwe School Examinations Council (ZIMSEC), a
statutory body created in terms of the Zimbabwe School Examinations
Council Act [Chapter 25:18]. It is responsible for conducting
examinations for primary and secondary schools in Zimbabwe. It is
also empowered, in terms of section 34 of its enabling Act, to annul
examination results.
The
respondents are the respective guardians of two schoolchildren who
sat to write the Ordinary Level English Paper 1 and Paper 2
examinations conducted by the appellant in November 2017.
It
is common cause that there was a leakage of English Paper 2 which led
to widespread cheating by candidates who sat for the examination in
that paper.
On
6 February 2018, the appellant took the decision to nullify the
results of that examination. The appellant also directed a re-sit of
that examination which was scheduled for 16 February 2018.
The
respondents, being aggrieved by these decisions, filed an urgent
chamber application in the High Court for an order setting them
aside.
They
averred that the decisions were arbitrary and would cause undue
hardship to their respective daughters as well as other students who
had written their examinations in earnest and without cheating. At
the time of the application, the first respondent's daughter had
travelled to Australia, while the second respondent's daughter was
in Bindura but her examination centre was located in Goromonzi.
The
court a quo identified the issues before it as follows:
(i)
whether or not the appellant's nullification of the English Paper 2
examination results ought to stand; and
(ii)
whether a rewrite of that examination was the appropriate remedy.
The
court proceeded to uphold the appellant's decision to nullify the
results of the Paper 2 examination. However, it set aside the
appellant's decision calling for a rewrite of the examination and
substituted it with an order to the effect that the results of
candidates be based on the results in Paper 1 only, as per the
recommendations of the English Subject Manager, dated 8 January 2018.
In
arriving at its decision, the court a quo (which comprised two
judges) reasoned that it could not uphold the results of the Paper 2
examination as this would amount to the court aiding and abetting
cheating in examinations. However, the appellant's decision to
order a rewrite of the Paper 2 examination was taken without regard
to the recommendations of the Subject Manager and was therefore
arbitrary in nature. Additionally, that decision was made without
taking into account the interests of those children who did not cheat
in the examination. It was also possible that many innocent children
did not have access to information pertaining to the scheduled
rewrite of the examination, as the notice given by the appellant for
the scheduled rewrite was grossly and unreasonably short.
The
appellant impugns the judgment a quo on the following grounds, as
summarised:
(a)
The court granted relief that was not sought or justified on the
papers without advance notice or warning to the appellant.
(b)
The court substituted its own substantive decision without being
possessed of the tools to make such a technical and far-reaching
decision.
(c)
The only relief that was affordable was an extension of time for
retaking the examination and the effect of the court's substantive
decision was to negate the exercise of the appellant's statutory
function.
(d)
The issues in question were not resoluble on the basis of the Subject
Manager's recommendations which had already been rejected by the
authority vested with the mandate to consider them.
(e)
The court granted final relief on an urgent basis in a matter that
was hotly contested and where the parties were not availed sufficient
time to advance their contentions.
I
should note at the outset that the decision appealed against is an ex
tempore judgment handed down with full reasons to follow, given the
importance of the matter as perceived by the court a quo.
Although
those full reasons have not as yet been availed by the court, I take
the view, with the concurrence of my brother judges, that the
judgment that was rendered adequately sets out its essential reasons
and basis so as to enable this Court to consider and determine the
grounds of appeal in casu.
In
any event, both counsel for the appellant and the respondents were
willing and prepared to proceed with the appeal on the basis of the
available judgment.
Mootness
of the Appeal
Apart
from the foregoing grounds of appeal, there is a further aspect
arising from a point in limine taken by Mr Halimani, counsel for the
respondents, relating to the mootness of the matter in light of
developments after the judgment a quo was delivered.
In
particular, it is submitted that all the affected students, including
the respondents' daughters, have moved on since the events giving
rise to this matter. Therefore, any judgment of this Court would not
have any impact on their situation and no practical consequences
would flow from granting the relief sought by the appellant.
The
Court must deal with a controversy that is live and not one that is
moot. The appellant “must not have a mere academic interest in the
right or obligation in question but … some tangible and justifiable
advantage” in relation to that right or obligation - per
Chidyausiku CJ in Ngulube v Zimbabwe Electricity Authority & Anor
SC52–2002.
The
present matter is clearly academic.
Furthermore,
so it is argued, the judgment a quo, although delivered by two judges
of that court, has not set any precedent, as there are two subsequent
decisions of the High Court that did not follow the impugned
decision.
Mr
Mpofu, for the appellant, insists that the appeal is not academic.
He
submits that the judgment a quo sets a precedent for the appellant's
actions in the future, especially because it is one that was
delivered by two judges. The implications of that judgment have
practical consequences. If the appellant were to find widespread
cheating in its examinations and decides to nullify the results of
those examinations, it will be confronted by the judgment a quo. In
the circumstances, the present appeal is necessary to vindicate the
appellant's right to carry out its administrative functions in
accordance with the law.
The
question of mootness was fairly comprehensively canvassed in a recent
judgment of the Constitutional Court in Khupe & Anor v Parliament
of Zimbabwe & Ors CCZ 20/19. As was aptly observed by Malaba CJ,
at pp. 7-8:
“A
court may decline to exercise its jurisdiction over a matter because
of the occurrence of events outside the record which terminate the
controversy. The position of the law is that if the dispute becomes
academic by reason of changed circumstances the Court's
jurisdiction ceases and the case becomes moot ….
The
constitutional limits on the exercise of judicial power, combined
with notions of the limited nature of judicial power, have evolved
into a broad doctrine known as 'justiciability'.”
The
position on mootness and justiciability is no different in other
common law jurisdictions.
In
the early American case of Mills v Green 159 US 651 (1895) at 653,
the Federal Supreme Court held as follows:
“The
duty of this Court, as of every other judicial tribunal, is to decide
actual controversies by a judgment which can be carried into effect,
and not to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which cannot
affect the matter in issue in the case before it.
It
necessarily follows that when, pending an appeal from the judgment of
a lower court, and without any fault of the defendant, an event
occurs which renders it impossible for this Court, if it should
decide the case in favor of the plaintiff, to grant him any effectual
relief whatever, the court will not proceed to a formal judgment, but
will dismiss the appeal.”
With
specific reference to justiciability, the same court, in Flast v
Cohen 392 US 83 (1968) at 95, opined that:
“Justiciability
is the term of art employed to give expression to this dual
limitation placed upon Federal Courts by the 'case and controversy'
doctrine.
Justiciability
is itself a concept of uncertain meaning and scope. Its reach is
illustrated by the various grounds upon which questions sought to be
adjudicated in Federal Courts have been held not to be justiciable.
Thus, no justiciable controversy is presented when the parties seek
adjudication of only a political question, when the parties are
asking for an advisory opinion, when the question sought to be
adjudicated has been mooted by subsequent developments, and when
there is no standing to maintain the action.”
To
similar effect, the Supreme Court of Canada, in Borowski v Canada
(Attorney General) [1989] 1 SCR 342, outlined the two-stage inquiry
into the question of mootness:
“An
appeal is moot when a decision will not have the effect of resolving
some controversy affecting or potentially affecting the rights of the
parties. Such a live controversy must be present not only when the
action or proceeding is commenced but also when the court is called
upon to reach a decision.
The
general policy is enforced in moot cases unless the court exercises
its discretion to depart from it.
The
approach with respect to mootness involves a two-step analysis. It is
first necessary to determine whether the requisite tangible and
concrete dispute has disappeared rendering the issues academic. If
so, it is then necessary to decide if the court should exercise its
discretion to hear the case.”
The
same position has been adopted in South Africa.
In
National Coalition for Gay and Lesbian Equality & Ors v Minister
of Home Affairs 2000 (2) SA 1 (CC), at para 21, the Constitutional
Court held that:
“A
case is moot and therefore not justiciable if it no longer presents
an existing or live controversy which should exist if the Court is to
avoid giving advisory opinions on abstract propositions of law.”
Again,
in Koko v Eskom Holdings SOC Ltd [2018] ZALCJHB 76, at para 21, it
was emphasised that:
“Further,
the controversy must be a live one. Put differently it must exist
between the warring parties.
A
case would be moot if the parties are not adverse, if the controversy
is hypothetical, or if the judgment of the court for some other
reason cannot operate to grant any actual relief, and the court is
without power to grant a decision. It is moot, if it no longer
presents an existing or live controversy or the prejudice or threat
of prejudice which, to an applicant, no longer exists.”
I
have already adverted to the two-stage inquiry relating to the
question of mootness. As was underscored in Khupe's case, supra, at
p. 13, the mere fact that a matter is moot as between the parties
concerned does not per se render it unjusticiable. The next step in
the analysis is to decide whether or not the court should exercise
its discretion to hear the case. In that respect, courts are guided
by the rationale and policy considerations underlying the doctrine of
mootness – Borowski's case, supra.
The
overriding consideration is whether or not it is in the interests of
justice to hear a moot case.
The
factors to be taken into account in that regard were lucidly
enunciated by the Constitutional Court of South Africa in Independent
Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at
para 11:
“This
Court has a discretion to decide issues on appeal even if they no
longer present existing or live controversies. That discretion must
be exercised according to what the interests of justice require.
A
prerequisite for the exercise of the discretion is that any order
which this Court may make will have some practical effect either on
the parties or on others. Other factors that may be relevant will
include the nature and extent of the practical effect that any
possible order might have; the importance of the issue; its
complexity; and the fullness or otherwise of the argument advanced.”
(My emphasis)
An
additional factor that may arise for consideration is whether the
effect of declining to authoritatively adjudicate a moot issue would
create a situation “capable of repetition, yet evading review.”
This
was highlighted in two separate cases involving the constitutionality
of anti-abortion laws in the United States of America and Canada.
In
the celebrated landmark case of Roe v Wade 410 US 113 (1973) at 125,
the Federal Supreme Court held that:
“Our
law should not be that rigid. Pregnancy often comes more than once to
the same woman, and in the general population, if man is to survive,
it will always be with us. Pregnancy provides a classic justification
for a conclusion of non-mootness. It truly could be 'capable of
repetition, yet evading review'.”
Again,
in Tremblay v Daigle [1989] 2 SCR 530, at 571, the Supreme Court of
Canada proceeded on the same basis:
“As
we have indicated, the Court decided, in its discretion, to continue
the hearing of this appeal, although it was moot, in order to resolve
the important legal issue raised so that the situation of women in
the position in which Ms. Daigle found herself could be clarified.”
In
the final analysis, as I have already stated, the overriding
criterion in exercising the court's discretion to hear and
determine a moot question is whether or not it is in the interests of
justice to do so. In the words of Malaba CJ in Khupe's case, supra,
at p. 17:
“Where
a matter is of such a nature that it might keep arising in the Court
or where there is need to resolve a serious legal question, the Court
may exercise its discretion to hear the moot issue by reason of its
significance, as it would in such circumstances be in the interests
of justice to make a determination on the issue.”
In
casu, it is common cause that pursuant to the judgment a quo all of
the students, including the respondents' daughters, who were
affected by the appellant's decisions, have in fact moved on to
other academic pastures beyond the Ordinary Level stage. Indeed, the
only relief that the appellant seeks on appeal is that the challenge
to its decision to have the flawed examination retaken be set aside.
It
is therefore not in dispute that any decision that this Court might
render in this appeal will not entail any practical consequence
vis-à-vis the students in question or their examination results as
declared by the court a quo. In these circumstances, it cannot be
gainsaid that the initial controversy between the parties herein is
no longer live and has effectively been extinguished for all
practical purposes. That particular controversy has become otiose and
substantially moot.
Nevertheless,
the question that still remains is whether or not this Court should
exercise its discretion to entertain and determine the merits of this
appeal despite its apparent mootness.
Having
regard to the factors articulated in the Langeberg Municipality case,
supra, I am inclined to answer this question in the affirmative for
the following reasons;
There
is no doubt that any decision that this Court makes will inevitably
have some practical effect on many other students who will at some
stage in the future sit to write examinations conducted by the
appellant. The matter is therefore not one that can be characterised
as being entirely academic for all time. In the event that the
appellant should for some good reason decide to exercise its
administrative will to nullify the results of any given examination
and require that it be taken afresh, the students that might be
affected thereby as well as the appellant itself will be governed and
guided by the decision of this Court.
Thus,
the extent of its practical effect would undoubtedly be of a long
term and all-embracing nature.
Moreover,
the importance and complexity of the issues raised in this appeal are
manifestly self-evident.
Additionally,
regarded from the different perspective alluded to in Roe's case,
supra, there can be no doubt that the refusal by this Court to decide
those issues will inevitably create a situation “capable of
repetition, yet evading review.”
It
seems necessary in the present context to definitively demarcate the
proper boundary between ostensibly lawful administrative action on
the one hand and appropriate judicial intervention on the other.
Ultimately,
I take the view that the Court should hear and decide the issues
herein by virtue of their extensive and long term significance which
dictates that those issues be determined in the interests of justice.
Final
Relief Granted on Urgent Basis
The
first ground of appeal attacks the judgment a quo on the basis that
the court afforded relief which was neither sought nor justified on
the papers before the court, without advance notice or warning to the
appellant.
Closely
related to this ground is the fifth ground which impugns the grant of
final relief on an urgent basis, without having availed the parties
sufficient time to put forward their respective contentions.
I
intend to address both grounds together.
It
is not disputed that the court a quo granted final relief instead of
the interim relief that was sought by the respondents. It is also not
in dispute that the final order that was granted departed materially
from the provisional order that was sought by the respondents.
The
relief granted was not pleaded or supported by the averments
contained in the founding affidavit and no evidence was led to
support it.
It
is trite that an application either stands or falls on its founding
affidavit – Director of Hospital Services v Mistry 1979 (1) SA 626
(A) at 653 H-636B.
It
is also trite that a court is ordinarily not at large to grant relief
which has not been sought by the applicant. The court cannot exceed
its mandate to determine the issues placed before it by the parties
through their pleadings and evidence or mero motu grant orders not
sought by either party without obtaining the parties' views on
those orders – Nzara & Ors v Kashumba N.O. & Ors SC18-18.
As
regards the grant of final substantive relief, it is generally
undesirable to afford a final and definitive judgment on an urgent
basis because that would ordinarily necessitate the applicant having
to prove a clear right on the return date as opposed to a lesser
prima facie right justifying the grant of interim or provisional
relief; Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188 (H);
Zimbabwe Congress of Trade Unions v Officer Commanding, Zimbabwe
Republic Police, Harare District & Anor 2002 (1) ZLR 323 (H) at
328.
In
casu, Mr Mpofu submits that the appellant was not given sufficient
time to deal with the matter properly on an urgent basis.
Furthermore, the court a quo granted final relief that was neither
pleaded nor sought, to the extreme prejudice of the appellant.
Mr
Halimani counters that the parties were afforded the opportunity to
address all the issues raised a quo. The urgent chamber application
mounted by the respondents had effectively become an opposed matter.
As regards the order granted by the court, he concedes that it did
not grant the provisional order that was sought by the respondents.
Nevertheless, so he argues, the case established by the respondents
justified the final relief that was granted.
Having
regard to the record a quo, I am inclined to agree with Mr Halimani
that the parties were availed sufficient time and ample opportunity
to put forward their respective contentions. The respondents filed
their application on 9 February 2018, and the appellant responded to
file its opposing papers on 12 February 2018. Thereafter, the
respondents filed their heads of argument and answering papers on 12
and 13 February 2018 respectively. The appellant reacted immediately
with its heads of argument on 13 February 2018 and the respondents'
supplementary heads of argument were filed on the same day. The
matter was then heard and determined on 14 February 2018.
Given
this scenario, I am unable to find any merit in the appellant's
complaint concerning the time and opportunity afforded to advance its
position.
Turning
to the order granted by the court a quo, there can be no doubt that
its terms are materially different from those contained in the draft
provisional order sought by the respondents.
However,
given the perceived urgency of the circumstances a quo, I do not
think that it can be said that the court took leave of its senses in
departing from the original relief sought by the respondents.
In
my view, the facts of this case are clearly distinguishable from
those in Nzara's case, supra, where the order that was granted by
the lower court was simply plucked from the air. This was not the
position in casu where the constraints of time were evidently
paramount. The court a quo was obviously alive and sensitive to the
interests of those students who would not have been involved in the
malpractice of cheating as well as those who might not have had
access to information pertaining to the examination that was to be
rewritten.
In
any event, Rule 246(2) of the High Court Rules allows the court
seized with an urgent application to grant a provisional order in
terms of the draft order as may be varied so as to accommodate the
respective rights and interests of the parties.
As
has been observed, albeit in the context of fundamental rights, the
courts have a duty to provide effective relief through an appropriate
remedy in order to secure the protection and enforcement of important
rights, even if it involves having to fashion or forge an innovative
remedy – Fose v Minister of Safety and Security 1997 (3) SA 786
(CC) at paras 19 & 69.
I
fully endorse these sentiments and subscribe to the view that the
courts should not invariably and slavishly be hidebound to the
pleadings when framing effective remedies that are appropriate to the
given circumstances.
All
in all, I am satisfied that the court a quo did not egregiously
misdirect itself in granting final relief in terms that were not
originally motivated by the respondents.
In
the event, I take the view that the first and fifth grounds of appeal
are not meritorious in the particular circumstances of this matter.
They are accordingly dismissed.
Judicial
Interference with Administrative Action
The
second, third and fourth grounds of appeal, taken cumulatively,
relate in essence to the court a quo having set aside the appellant's
administrative decision and having substituted its own decision in
its stead.
As
I have already intimated, they raise the perennial question of the
extent to which the courts may justifiably interfere with
administrative action.
The
fourth ground of appeal takes issue with the reliance placed by the
court a quo on the recommendations made by the English Subject
Manager in ordering that the results of candidates should be based on
the results attained in Paper 1 alone. The Subject Manager's
recommendations were contained in his/her report dated 8 January
2017. These recommendations were then endorsed on 15 January 2018 by
the Examinations Committee in broadly similar terms.
Mr
Halimani contends that there was no basis for the appellant to reject
these recommendations of the Subject Manager and Examinations
Committee. The appellant was more obsessed with protecting its image,
despite the logistical difficulties and prejudice to the affected
students that would be occasioned by having the Paper 2 examination
retaken at very short notice.
The
court a quo appears to have agreed with this position and proceeded
to find that the decision to rewrite Paper 2 was taken without regard
to the recommendations of the Subject Manager and was therefore
arbitrary in nature.
However,
as is evident from the minutes of the appellant's Board of
Directors meeting held on 22 January 2018, the appellant did in fact
consider and deliberate those recommendations. It thereafter took the
decision to reject them so as not to jeopardise the integrity of the
examination process. In this respect, I fully agree with Mr Mpofu's
submission that the Subject Manager was not the relevant decision
maker and that the Board was not bound to accept his recommendations.
It was at large to accept or reject those recommendations in order to
deal with the examination that had been compromised.
The
court a quo clearly misconstrued the import and purpose of a
recommendation, the recipient of which is not legally obligated to
accept and implement it in making its final decision.
In
casu, the Subject Manager had no power to bind the appellant's
Board. All that he/she could do was to make recommendations for
consideration by the Board. The Board duly considered those
recommendations and rejected them on grounds falling within its
administrative remit and province. The powers that were thereafter
exercised by the appellant, i.e. to nullify the Paper 2 results and
order a rewrite of the examination, were entirely concordant with the
provisions of section 34(1) of its enabling Act, as read with section
24(2) of the Interpretation Act [Chapter 1:01].
The
former empowers the appellant to annul the results of any examination
which is flawed by a specified irregularity, while the latter extends
that power to address the consequences and exigencies of any such
nullification.
In
my view, these provisions, taken together, entitled the appellant to
exercise all such powers as were reasonably necessary or incidental
to the proper and effective discharge of its statutory functions and
duties, including the power to order a rewrite of any examination the
results of which have been annulled.
The
third ground of appeal is premised on the argument that the court a
quo, having found that the respondents had established their case,
could not render a decision that effectively negated the lawful
exercise of the appellant's statutory functions. The only
appropriate relief that the court could have afforded was an
extension of the time period required for the retaking of the Paper 2
examination.
It
is not in dispute that the decision made by the appellant to
invalidate the results of the flawed examination was properly taken.
This position was explicitly affirmed by the court a quo in paragraph
1 of its operative order. Nevertheless, the court then proceeded to
deprive the appellant of the only logical and practical remedy
consequential to the decision to nullify the examination results, to
wit, that the examination be rewritten.
In
my view, a resit of the examination was unavoidable given that the
power vested in the appellant to nullify examination results also
allows it to rectify the situation by ordering that it be retaken.
Any other remedial measure would have hopelessly undermined the
integrity of the examination process.
What
the court a quo could and should have done was to address the
procedural aspects of the remedy, by interfering with the timelines
that had been stipulated by the appellant and extending those
timelines to accommodate the interests of all the affected students.
Additionally, the court could have ensured that those students who
had travelled outside the country be allowed to resit the examination
at Zimbabwean embassies abroad.
This
was in fact specifically proposed by the appellant itself in its
opposing affidavit.
On
the other hand, what the court a quo could not legitimately do was to
interfere with the administrative decision to order the rewrite of
the flawed examination.
It
seems academically inconceivable that an examination, which hitherto
has traditionally and globally consisted of an assessment of two
separate papers, can suddenly be converted and tested on the basis of
an assessment of one paper only. I shall revert to this aspect later
in this judgment.
The
second and most salient ground of appeal impugns the judgment a quo
for having set aside and substituted the appellant's substantive
decision with the court's own decision, without the court having
been possessed of the tools necessary to make such a technical and
far reaching decision.
The
general principle is that the courts will not interfere with the
actions or decisions of an administrative authority unless they are
shown to be unlawful, grossly unreasonable or procedurally irregular
or unfair. This fundamental canon of the common law, as embodied in
the so-called Wednesbury principle, is now codified in section 3(1)
of the Administrative Justice Act [Chapter 10:28].
The
corollary to this principle is that the courts will generally not
substitute their own decisions for those of the administrative
authority.
As
was aptly recognised by McNally JA in Affretair (Pvt) Ltd & Anor
v M.K. Airline (Pvt) Ltd 1996 (2) ZLR 15 (S) at 21:
“The
duty of the courts is not to dismiss the authority and take over its
functions, but to ensure, as far as humanly and legally possible,
that it carries out its functions fairly and transparently. If we are
satisfied that it has done that, we cannot interfere just because we
do not approve of its conclusion.”
However,
this latter principle is not immutable and may be departed from in
exceptional circumstances. In particular, the court may substitute
its own decision for that of the administrative functionary in the
following instances:
(a)
where the end result is a foregone conclusion and it would be a waste
of time to remit the matter;
(b)
where further delay would prejudice the applicant;
(c)
where the extent of bias or incompetence displayed is such that it
would be unfair to force the applicant to submit to the same
jurisdiction;
(d)
where the court is in as good a position as the administrative body
or functionary to make the appropriate decision.
See
the Affretair case, supra, at 24–25: Gurta AG v Gwaradzimba N.O.
HH353-13, at pp. 9–10; C.J. Petrow & Co (Pvt) Ltd v Gwaradzimba
N.O. HH175–14, at pp. 8–9.
Mr
Halimani contends that all of the four exceptional criteria were
applicable in casu.
It
would have been a waste of time to refer the matter back to the
appellant as it had become clear that it had failed in performing its
functions. Further delay would have prejudiced the affected students
in their ability to move on to the Advanced Level stage. It would
also have been unfair to submit the students to the same hopelessly
incompetent officials who had failed to safeguard the integrity of
the examination. Lastly, the court a quo was in as good a position as
the appellant to make the decision as it had been adequately
addressed by the parties and had the relevant material on record.
Mr
Mpofu counters that, once the court a quo had accepted that the
appellant's decision to nullify the examination was correct, it
could not substitute the decision of the appellant to have the
examination rewritten. The court did not have the tools to substitute
its own decision for that of a professional body. The usurpation of
administrative functions by the court was unwarranted.
I
fully agree with the appellant's position.
Once
it was accepted that the appellant was entitled to nullify the
examination results, it must follow that it was also entitled to
decide what steps should be taken to remedy the situation that had
arisen.
The
court a quo was clearly not endowed with the requisite tools or
technical expertise to determine the appropriate remedial measure to
be applied.
It
is difficult to understand the basis upon which the entirety of the
Ordinary Level English Language examination could be rationally
evaluated and determined upon an assessment of Paper 1 alone. The
court did not have regard to the different aspects that candidates
are tested upon by Paper 1 on the one hand and Paper 2 on the other.
The skills and competence involved in the two Papers are obviously
and markedly different. In this respect, the court failed to consider
that the candidates would not necessarily perform equally
consistently in relation to the two very distinct Papers. The court
could not have considered the foregoing factors for the simple reason
that it was not equipped to do so.
In
my view, the impugned part of the judgment a quo renders the
credibility of the entire examination system administered by the
appellant highly questionable.
In
the final analysis, it is abundantly clear that the court a quo was
not in as good a position as the appellant to make the drastic and
far reaching decision that it made. In so doing, it usurped a
function that only the appellant could have efficiently and
effectively performed in accordance with its statutory mandate. By
interfering with that mandate, the court unwittingly entered into a
domain completely beyond its ken and thereby transgressed the proper
boundary between lawful administrative action and appropriate
judicial intervention.
Disposition
In
the result, the appeal succeeds on the three substantive and
principal grounds of appeal.
As
regards costs, there appears to be no reason to depart from the usual
norm that costs should follow the cause. It is accordingly ordered
that:
1.
The appeal be and is hereby allowed with costs.
2.
Paragraph 2 of the judgment of the court a quo is set aside and
substituted with the following: “The application to set aside the
first respondent's decision to have the Ordinary Level English
Paper 2 examination retaken be and is hereby dismissed.”
BHUNU
JA: I agree
BERE
JA: I agree
Dube,
Manikai & Hwacha, appellant's legal practitioners
Wintertons,
respondents' legal practitioners
