They were given less than a week to rectify a student’s marks so that he could graduate, but instead the University of Fort Hare decided not to and the student went back to court. The university lost again.
Mbali Silimela was a final year education student at the University of Fort Hare. He approached the Bhisho High Court, without a lawyer, on an urgent basis, asking it to review a decision made by the university’s senate.
In his founding affidavit, Mbali says the application is for the review and setting aside of a decision taken by the Senate of the University on 2 February 2023 to withdraw or revoke (his) EDW 401 marks of 57%, which had been conferred on him by (the) Faculty of Education and Faculty board of the first respondent on 12th January 2023.
In March, Judge Belinda Hartle said she was satisfied that the Mbali had made out a case for judicial review.
“In the sense that the Senate has failed to take a critical decision which it was obliged to following the faculty’s recommendation put before it that (Mbali’s) late mark of 57% should be approved. The enormous prejudice to (Mbali) thereby which he has for a long time coming sought to address informally with the University (very volubly I might add) requires that the decision be taken with great alacrity.
“The University, through its responsible structures, is directed within 5 days of this order to properly consider the recommendation of (Professor Mncube), read together with all the information already furnished in support of (Mbali’s) request to have been condoned for his late submissions of the practical training components of the EDW401 module, that his late corrected mark of 57% in respect of the module be accepted and captured on the marks system, and to make a decision to approve it or not.”
Backed up by a legal team this time, Mbali returned to court represented by Lwazi Dekeda of Lwazi Dekeda Incorporated.
This time, judge Nozuko Mjali presided over the matter and heard that at the heart of Mbali’s challenge is contention that the Senate’s decision is irrational and unreasonable.
Further that the Senate misdirected itself as to what it was required to do in terms of the order.
In opposing the application, the university and the senate deny any misdirection. They also deny that their decision was irrational and unreasonable.
“In an apparent reference to the doctrine of separation of powers and interference by this court, they implored this court to respect the University’s processes and decisions, by allowing it to assess and graduate its student.
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“At the outset it must be stated that beyond separation of powers is an even more vital tenet of our constitutional democracy that everyone has a right to administrative action that is lawful, reasonable, and procedurally fair. Further that, everyone has a right to approach a court to review and set aside a decision deemed unlawful, unreasonable, and procedurally unfair,” says Judge Mjali.
A further concern raised by the university and senate in their papers as well as in argument in court is that, following the order granted by regarding Mbali’s matter, there is a growing trend of litigation by students who seek to graduate through courts despite not having met the requirements.
But Judge Mjali has found that the delay was not Mbali’s doing, but the lecturer who was supposed to mark his work.
“Explicit from the papers is that the late of submission of the Mbali’s 57% mark was not of his own doing but was due to the lecturer, Mr Macanda’s dilatory conduct. Common cause to the parties is that the decision to condone the applicant’s late filing of work was granted on 8 December 2022, a period of five days before the closure of the submission of the marks into the system on 13 December 2022.
“Macanda only marked the applicant’s work on 11 January 2023. This was after a lot of persuasion through a number of emails Mbali. By then the entry of marks into the portal had closed and could only be done with the permission of the senate. Had Mr. Macanda acted timeously, there would be no need for the approval of senate for the entry of the altered applicant’s mark into the system.”
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Judge Mjali describes the university’s attitude towards Mbali’s case as “recalcitrant”.
“The applicant has not been able to obtain remuneration from his employment due to his inability to prove his qualification. His chances of employment are also limited by this predicament that he finds himself in which is entirely not of his own doing. With his very limited resources he has had to litigate against the respondents for the relief which should not have been for the court to decide.
“He must have experience tremendous stress from this whole incident. The injustice caused by the respondents conduct to the applicant who went through the relevant structures to obtain condonation, had his work marked and obtained a pass mark is unimaginable and deserves this court’s mark of disapproval through a punitive costs order.”
In her order, Judge Mjali then reviewed and set aside the university’s decision to refusing to condone Mbali’s late submission of the History Module and Administrative Portfolio, as required by the EDW401 module for the Bachelor of Education degree and refusing to accept the recommendation by the Dean of the Faculty of Education of the first respondent, on behalf of the applicant, that the applicant’s marks be altered from 23% to 57%.
The university was also ordered to accept 57% as Mbali’s corrected mark for the EDW401 module for the Bachelor of Education programme.
“The University of Fort Hare is ordered to place Mbali’s name in the list of graduates of the Bachelor of Education degree which are due to be conferred during the graduation period of May 2023.
“The first respondent shall pay costs of this application on the attorney and client scale.”
