Urgent Chamber Application
NDOU J: The
applicant seeks a provisional order in the following terms:
“Terms
of the final order sought
a)
That the fees for the 1st semester of the
National University of Science and Technology being charged by the 1st
respondent without the prior approval of the 2nd respondent be and
are hereby declared to be illegal and unlawful.
b)
The refusal by the National University of Science and
Technology to accept the equivalent of the United States Dollars in the local
currency at the prevailing bank rates be and is hereby declared to be unlawful
and illegal.
c)
1st respondent be and are hereby ordered to
pay costs of suit at attorney and client scale.
Terms of the interim relief
granted
a)
The 1st respondent be and is hereby directed
forthwith to allow the applicants and all its students to register, attend
lectures and not to interfere with the applicants' attendance of any university
business open to students of their respective fields and classes pending the
finalization of this matter.
b)
The respondents be and are hereby ordered to seeks the
approval of the 2nd respondent for the new fees structure it wishes
to adopt for the current semester before gazetting the same or demanding that
the applicants or any other students pay the same.”
The background of
this application is the following. The 1st
applicant is said to be “a representative body of students in tertiary
institutions, colleges and universities.”
The applicant is said to be a common law universitas which represents
the interests of the students of the 1st respondent. The 1st respondent opened for the
1st semester of 2009 in January.
At the time of the finalization of this application, the registration of
students had commenced. Just prior to
the commencement of the registration the 1st respondent notified the
stakeholders of a new fee structure. The
fees were ranging from US$532 to US$700.
The new structure does not allow the payment of the equivalent in local currency. A student who cannot afford the full amount,
may pay 60% of the fees and the balance in installments. The order sought by the applicants is an
interdict preventing the 1st respondent from charging fees for the
first semester “using a fee structure that has not been approved by the 2nd
respondent as this is actually illegal.
The order should be that the 1st respondent is interdicted
until it does get proper and prior approval from the 2nd respondent
upon the finalization of the deliberations involving the student body
ZINASU.” A further prayer is that the
students be allowed to attend lectures from 29 January 2009 (without paying any
fees) until the finalization of this matter “to avoid the suffering of irreparable
harm by non attendance of lectures.”
There
is no doubt that the 1st respondent can statutorily fix fees without
appraising the 2nd respondent and the Reserve Bank of Zimbabwe – see
section 4(2) (c) of the National University of Science and technology Act
[Chapter 25:13]. It does not seem that
it can do so in foreign currency without Exchange Control Authority
approval. It is for this reason that it
made recommendations to the 2nd respondent for authorization by the
Reserve Bank of Zimbabwe.
Before
I deal with the merits of the application, I have to determine the points in limine raised by the 1st
respondent in turn.
Locus
standi of the applicants
As
far as the 1st applicant is concerned, it is alleged that it is not
a legal entity and cannot therefore not sue.
Further, it is alleged that, assuming there is legal standing, there is
no proper authority to institute these proceedings. The 1st respondent did not file an
affidavit or authority in response to this point in limine. Instead, Mr Dube, for the applicants, made
submissions on the law in this regard.
There is no evidence provided to show that the 1st applicant
is a legal entity capable of suing and being sued. This factual huddle was not attended by the 1st
applicant. If the 1st
applicant factually established it is a legal entity then, there should be
evidence to show the authorization of this application. The 1st applicant did not do so
notwithstanding the fact that the matter was postponed after these points had
been raised.
As
far as the 2nd applicant is concerned, the NUST Act recognizes the
NUST Students Union as representative of the students. The 2nd applicant is the Student
Representative Council. The 2nd
applicant has not explained in the finding affidavit that the Students Union
and Student Representative Council is one and the same entity. Once more, the 2nd applicant's
founding papers did not deal with its authorization to bring this
application. These issues were
raised. The applicants should have
responded to them either by seeking the filing of supplementary affidavits or
even better, in casu, by simply
filing an answering affidavit dealing with these issues. If this proved difficult, then they should
have withdrawn the application and instituted the proceedings afresh after
attending to the points raised in limine. When the locus
standi is raised, it is trite that the applicant must justify its
participation in proceedings by showing that it has a direct and substantial
interest in the subject matter and outcome of the application – United Watch & Diamond Co (Pty) Ltd and
Ors v Disa Hotels Ltd & Anor
1972 (4) SA 409 (C ); Deary N O v Acting President & Ors 1979 RLR 200
(G) at 203A-E; Wood & Ors v Ondangwa Tribal Authority & Anor
1975 (2) SA 294 (AD); Zimbabwe Teachers
Association & Ors v Minister of
Education 1990(2) ZLR 48 (HC); Nyamandlovu
Farmers Association v Minister of
Lands & Anor HB-19-03 and Unlawful
Occupiers of School Site v City of
JHB [2005] 2 ALL SA 108 (SCA). The
applicants failed to establish that they had been authorized to take up the cudgels
on behalf of the NUST Students or to assume the garb of a litigant on behalf of
the students. The deponents to the
founding affidavit for 1st applicant has not bothered to indicate
whether he is a student at the 1st respondent. Both deponents have not stated whether there
was a meeting of the students at NUST where the issue was discussed and they
were in turn authorized to institute these proceedings.
The
applicants will have to decide whether they want to institute a fresh
application dealing with the question of locus
standi appropriately. In its current
form, the application is defective.
Accordingly, the application is dismissed with costs without even
dealing with the other points in limine
raised.
Dube-Banda,
Nzarayapenga & Partners, applicants' legal practitioners
Calderwood, Bryce
Hendrie & Partners, 1st respondent's legal practitioners
Civil Division,
Attorney General's Office, 2nd
respondent's legal practitioners
