Urgent
Chamber Application
MOYO
J: This
is an urgent chamber application in terms of Rule 223A of the High
Court Rules. The Rule reads as follows:
“Where
a legal practitioner has certified in writing that a matter is
urgent, giving reasons for its urgency, the court or judge may direct
that the matter should be set down for hearing at anytime and
additionally, or alternatively, hear the matter at any time or place,
and in such event Rule 223 shall not apply or shall apply with such
modifications as the court or judge may direct.”
My
reading of Rule 223A does not seem to entail that a court application
should be filed and then an urgent application be filed to get an
order setting the other matter down urgently. I hold the view that
that particular application which is being sought to be set down
should be the one that is certified as urgent in terms of Rule 223 as
opposed to Rule 244.
However,
this is just a comment on the proper procedure in relation to Rule
223A; it is not an issue between the parties.
The
facts of this matter are that on 12 February 2018, the fourteen
applicants received a whatsapp message from the headmistress of
Regina Mundi High School where their minor children were enrolled and
had sat for their Ordinary level examinations during November last
year. In the message amongst other things, they were advised that
their children had been blacklisted as they had cheated in the
Examination of November 2017 and that consequently their results had
been cancelled.
Aggrieved
with that decision they then mounted an application for review on 23
February 2018 under case number 619/18 seeking to have first
respondent's decision of cancelling the results set aside.
The
gist of the application for review is that the decision to cancel the
results was made without the affected parties having been heard and
that this violated section 3 of the Administrative of Justice Act
[Chapter 10:28]. The other reason for review being that the decision
to cancel the results is contrary to the provisions of section 75 of
the Constitution of Zimbabwe.
Section
3 of the Administrative Justice Act (supra)
deals with the right to fair administrative justice. Section 75 of
the Constitution deals with the rights to education.
The
basis of this application is to seek that the other application (the
application for review) be heard as a matter of urgency as it affects
the minor children's rights to proceed to Advanced Level and that
should happen during this school term.
The
respondents have raised two points in
limine
in response, they say that the matter is not urgent and that secondly
there are material disputes of fact that cannot be resolved on paper.
On
the merits, applicants say their children never cheated during the
November 2017 O-Level examinations.
The
first respondent says following a report of cheating at the concerned
school, investigations were conducted that unearthed cheating by the
affected students and they have annexed to the opposing papers their
findings in this regard, that is, as to why they arrived at that
conclusion and consequently took the action they took.
The
misjoinder of second respondent
Before
I proceed to deliberate on the points in
limine
or the merits of this application let me first dispose of the
contention by the second respondent that it was wrongfully joined to
these proceedings.
Second
respondent, the Minister responsible for primary and secondary
schools pleads misjoinder in this matter.
Clearly,
the first respondent is an entity established through the Zimbabwe
School Examinations Act [Chapter 25:18] (herein after referred to as
the ZIMSEC Act) section 3 thereof which reads:
“There
is hereby established a council to be known as the Zimbabwe School
Examinations Council which shall be a body corporate and, in its
corporate home, shall be capable of suing and being sued and, subject
to this Act, of performing all acts that bodies corporate may by law
perform.”
First
respondent is a body corporate in its own right, it has its powers
and parameters as set in an Act of Parliament and is therefore an
entity divorced from the Minister, although it falls under the
purview of the Ministry. There was thus no need to join the Minister
in these proceedings in my view.
Urgency
First
respondent contends that this matter is not urgent since applicants
from 12 February 2018, only acted on 23 February 2018, to file the
application for review and later on 27 February 2018 to file this
application.
From
12 February to 27 February it's a period of about fifteen days.
This
is a considerable period of time although applicants say they were
waiting for the ZIMSEC national challenge on the English Paper 2.
The
other problem is that Rule 223A provides for a court application to
be certified urgent not for a separate application to be filed on
urgency in my view.
The
problem that immediately arises on the issue of urgency is that if
the applicants considered that the application for review should be
heard as a matter of urgency, then they should have filed it in terms
of Rule 223A, that is, it is the one that should have had a
certificate of urgency affixed to it.
To
file an ordinary application on 23 February 2018 and then file an
urgent application four days down the line gives an impression that
the urgency came as an afterthought but that the applicants did not
consider the matter urgent at the time of filing.
However,
applicants submit that the application is urgent because of the
Advanced Level rush for vacancies.
Indeed
if the matter is resolved timeously the applicants' children might
make it into Advanced Level classes this term if the result of the
application is in their favour. However, their conduct at the
material time did not exhibit urgency. There is some blunder that the
applicants committed in not filing an application and exhibiting
urgency at the inception.
The
point in
limine
relating to the applicants' tardiness in so far as urgency is
concerned is not without merit.
The
applicants did not act with urgency when the situation arose. It
follows that by virtue of their own conduct, that application must
join the queue with all other applications.
The
point in
limine
relating to material disputes of fact
The
first respondent contends that there are material disputes of fact in
the matter in that whilst applicants say their daughters never
cheated in the examination, first respondent has cogent information
that it is advancing in support of their decision that the
applicant's children cheated. This particular issue cannot be
resolved on paper.
I
agree with respondent's counsel on this point and whilst this point
may not affect the urgency or otherwise of the application, it
affects its prospects of success in the sense that if there are
material disputes of fact then certainly spearheading the set down of
that application will not serve any purpose as it is doomed to fail
on that technical point anyway.
On
the merits, this court has to look at the prospects of success of the
application for review. The relief sought on review is that the
decision of the first respondent be set aside full stop.
This
will happen once the court agrees with the applicants that they were
not given a fair hearing by first respondent.
Whilst
I will not delve into whether or not the court is likely to hold that
first respondent's decision violates the Constitution, I would want
to point out that even if the court would agree for argument's
sake, that would not entail a release of the results by the first
respondent.
I
say so for a court cannot simply order that a matter where issues
remain unresolved should end there, with applicant's children
getting their results on the basis of a technicality and yet first
respondent's findings on cheating could be correct. Even if the
matter is heard, and the first respondent is found to be in violation
of the right to be heard for arguments sake, which finding is highly
unlikely in my view, it, the court is likely to order that first
respondent does the correct thing by remitting the matter back to
first respondent rather than making an order that has an effect on
the entitlement of or otherwise to the results by the applicants and
yet the court would be unaware of the facts relating to the aspect of
cheating.
I
hold the view that the matter can never end without an establishment
as to whether the applicants' children did cheat or not. I also
hold the view that whether the applicants were properly heard or not
does not rest the matter. The first respondent has availed facts from
an assessment and an investigation that show prima facie that the
applicants' children could have cheated.
Applicants'
children are facing a scenario whereby a breach of examination rules
is being alleged against them and first respondent is empowered in
terms of the law to investigate, make findings and consequently, take
appropriate action against those found to have flouted examination
regulations.
That's
the prerogative of first respondent. This court has no right to
interfere with that process which is due process in terms of the
Zimsec Act (supra).
This
court has no tools or equipment to assess the truthfulness or
otherwise of the averment by applicants that they did not cheat. On
the other hand, Zimsec is so empowered, both legally and technically.
Administrative
bodies should be left to manage situations before them without the
court's entering the fray and taking charge of situations that it
is not in a position to discern.
Only
findings on the merits or demerits of applicants' case will rest
this matter and thus rushing to deal with a technicality will not
resolve it. Applicants' application for review is premised on a
technicality and yet the substance of the cheating or otherwise is
the crux of the matter.
I
say so being alive to the order granted in the matter of Victor
Mukomeka and Another
v Zimsec
and Another
HC1275/18 wherein the nullification of results by first respondent
was upheld although the court then gave a different approach on the
re-writing of the same paper, clearly because of its punitive nature
on innocent students.
I
am also persuaded by the inclination in the judgment of ZHOU
J in
Mike
Velah and Others
v Minister
of Primary and Secondary Education and Another
HH124/18 which shows that the courts would not want to interfere with
the findings of the first respondent lightly due to the national
importance of the integrity of examinations.
I
also hold the view that the powers of first respondent to manage
examinations and maintain their international integrity and
importance, is an integral part of our society as the future of a
country lies in its educational system.
Allegations
or findings of cheating can therefore not be taken lightly nor can
first respondent's powers in relation thereto be diluted or
curtailed by technical findings that may result in those that do not
deserve a certain grade, riding on their dishonesty and therefore
attaining fraudulently a grade or standard that they do not deserve.
That would lower the standards of education in our country and yet
each and every country takes pride in its youngsters as they
constitute the future generation and they are tomorrow's leaders.
First
respondent should be allowed in my view to take all the necessary
steps to safeguard our national examinations in the manner it sees
fit. Examinations are of international importance and their integrity
should be jealously guarded by those responsible for their
management.
I
accordingly hold the view that the main application has no prospects
of success on the merits and consequently this application must fail
on all the reasons enunciated herein.
The
application is accordingly dismissed with costs.
Garikayi
and Company C/o Moyo and Nyoni
applicants' legal practitioners
Dube
Manikai and Hwacha,
1st
respondent's legal practitioners
