Urgent
Chamber Application
ZHOU
J:
The
four applicants are parents of minor children who wrote Ordinary
Level examinations in November 2017. The examinations are managed by
the second respondent, a body corporate duly established by and in
terms of section 3 of the Zimbabwe School Examinations Council Act
[Chapter
25:18].
The
results for the November 2017 examinations were released by the
second respondent on 23 February 2018. When the applicants and/or the
children they represent attended at St David's Bonda Secondary
School, which was their examination centre, to collect the results
they were informed by the authorities there that their results had
been withheld by the second respondent on grounds of alleged
cheating.
The
precise dates on which the withholding of the results was
communicated to the applicants is not clear from their affidavits. Be
that as it may, what is evident is that the applicants then
instituted the instant urgent chamber application on 2 March 2018.
At
the commencement of the hearing the fourth applicant notified that
she was withdrawing from the matter. Three applicants persisted with
the application.
The
application is opposed by both respondents.
Before
hearing submissions on the merits of the application I heard argument
on the objections in
limine
taken by the respondents.
The
first respondent objected to his joinder on the grounds that his
responsibility is only to give policy guidance to the second
respondent, and he has no role in the making of the decision of the
first respondent which is sought to be impugned.
Mr
Chamuka
for the applicants readily conceded that the first respondent was
improperly joined to the application. The concession was properly
made.
The
decision which is sought to be challenged is administrative, and the
first respondent is indeed not involved in its making. The second
respondent, as provided for in section 3 of the Zimbabwe School
Examinations Council Act is a body corporate capable of suing and
being sued in its corporate name.
The
objection in
limine
pertaining to improper joinder of the first respondent is therefore
upheld.
The
second respondent also objected in
limine
to the determination of the matter on the merits on 5 grounds. These
are:
(1)
that the application is invalid for want of compliance with the
provisions of Rule 241;
(2)
that the matter is not urgent;
(3)
that the relief sought is incompetent for being final in its effect;
(4)
that the applicant are seeking review through an urgent chamber
application rather than through a court application as required by
the High Court Rules, 1971; and
(5)
that there are material disputes of fact which cannot be resolved on
the papers.
On
the question of urgency the application was filed within 7 days after
the results were released by the second respondent. While the
applicants do not give the precise dates on which they were notified
of the withholding of the results and do not explain what they were
doing in the 7 or so days prior to the filing of this application, I
do not think that in the circumstances of this matter a period of 7
days deprives the matter of its urgency.
The
application was filed about 5 days before the date upon which the
urgency appears to be founded which is the 7th
of March 2018, the date on which enrolment for Form 6 was due to
commence. The applicants did not therefore wait for the day of
reckoning to arrive. They acted expeditiously in the circumstances.
On
the question of the non-compliance with the proviso to Rule 241(1)
the complaint is that the chamber application ought to have been in
Form 29 with the necessary adjustments.
Mr
Chamuka
conceded the non-compliance and moved condonation of the
non-compliance by invocation of the powers reposed in the court or
judge in terms of Rule 4C.
While
there are judgments which suggest that the non-compliance with Rule
241 renders the application fatally defective, I hold a different
view.
If
this was the only defect complained of I would have considered
whether there are indeed good grounds for the non-compliance to be
condoned, especially as the respondents were served with the
applicants' papers and had the opportunity to file opposing papers
in the case of the second respondent.
But
this matter can be disposed of easily on the other points in
limine.
The
first insurmountable hurdle for the applicants is the relief which
they seek.
The
relief sought is final not just in its form and substance but in its
effect.
This
court has in many judgments warned against the undesirability of
seeking final relief through an urgent chamber application under the
guise that it is interim relief. Quite apart from the procedural
requirement that this kind of relief should be sought by way of
review as an ordinary court application as required by Order 33 Rule
256, if the relief was granted as sought its consequences would be
irreversible should the provisional order be not confirmed. The
interim relief that the applicants seek is that the decision to
withhold the applicants' results be set aside, and for the
applicants' results to be confirmed and released.
Mr
Chamuka
understandably was unable to make any meaningful submission on how
that kind of relief could be granted as interim relief.
On
that ground alone, the relief which the applicants seek is
incompetent and this court cannot grant it other than with the
consent of all the parties to the dispute. The application thus fails
on that basis.
The
further point taken is that there are material disputes of fact which
cannot be resolved on the papers.
The
dispute relates to whether there is indeed evidence which establishes
that the applicants' children had access to the examination
question papers or parts thereof prior to the date and time of
writing the examination.
The
applicants make the allegation that their children did not cheat and
never admitted to accessing the examination question in advance of
the date of the examination. The respondents, on the other hand, have
placed before this court cogent facts and in some instances evidence
which point to cheating.
Although
the fourth applicant did not give any reason for withdrawing from the
application one cannot ignore the possibility that the decision may
have been influenced by evidence of her cellphone texts conversation
with her daughter. That conversation suggests the she secured the
examination questions for the daughter prior to the date of
examinations.
The
second respondent has also through its internal procedures presented
findings which if proved at the trial would mean that the applicants'
children were guilty of the misdemeanour alleged.
These
are matters that would need to be tested through a trial.
The
nature of examinations and their bearing on the credibility and
integrity of a system of education are matters of national
importance. It is therefore necessary that where the integrity of a
country's system of education is exposed to being questioned the
authorities responsible for examinations be allowed to act in the
interests of protecting that integrity.
In
this case the court would be aiding illegal conduct if it was to
ignore the findings made by the second respondent through its
investigations. Those findings cannot be rejected via the procedure
of a court application.
The
court has a discretion as to the future course of proceedings
instituted by way of court application where there are material
disputes of fact.
In
the present case the applicants were always aware or ought to have
realised the existence of the disputes of fact. Further, when the
issue of disputes of fact is taken together with the relief sought as
considered above, it is only appropriate that the application be
dismissed.
In
the result, It is ordered that:
1.
the first respondent's objection in
limine
to its joinder be and is hereby upheld with costs.
2.
In relation to the second respondent, the application be and is
hereby dismissed with costs.
3.
The costs referred to in paragraphs 1 and 2 hereof shall be paid by
all the applicants, including the fourth applicant, jointly and
severally the one paying the others to be absolved.
Magaya-Mandizvidza
Legal Practitioners,
applicants' legal practitioners
Dube,
Manikai & Hwacha,
2nd
respondent's legal practitioners
