IN
THE HIGH COURT OF SWAZILAND
CIVIL
CASE NO. 2637/04
MHLONISHWA
MASILELA & 9 OTHERS
AND
UNIVERSITY
OF SWAZILAND
CORAM
KAMBULE – J
FOR
APPLICANTS X. HLATSHWAYO
FOR
RESPONDENT MR. S. DLAMINI
JUDGEMENT
30/9/04
Before
me is an application launched under a certificate of urgency and in
which the applicants pray for inter alia:-
Directing
the respondent to register the applicants into the Bachelor of
Commerce degree under full time programme.
Costs.
Further
or alternative relief.
1
The
respondent offers a three-year diploma course in commerce. Students
who complete this programme with an overall credit pass or
distinction may be recommended by the faculty board to senate, to
proceed to year four of a degree programme offered by the respondent.
The transfer of students from Diploma to the degree programme is
governed by Regulation 9.5.0 of the university calendar.
All
ten applicants completed their diploma programme at the end of
2003/04 academic year. Their final results were transmitted to them
in letters from the respondents senior assistant registrar, one R.W.
Masuku. The letters were dated 30th June, 2004. According to the
letters the results read as follows:
OVERALL
AVERAGE : PASS WITH CREDIT
RECOMMENDATION
: MAY TRANSFER TO B. COMM.
In
submission the applicants stated that when they were admitted to the
respondent institution, the following were express conditions set out
in the statutes:
To
pursue a Diploma in commerce course under the programme of distant
education, and
If
they pass under the credit, or distinction categories, they transfer
to the Bachelor of commerce course, and
The
Bachelor of commerce is a two-year programme, that is, it includes
Fourth and Fifth years.
2
According
to the applicants, as a matter of practice and procedure, the
students from the IDE Diploma in commerce programme, upon completion
of the said programme and upon attainment of the relevant credit
and/or distinction they qualify for admission in the full time
Bachelor of commerce programme.
Armed
with their results the applicants presented themselves for
registration under the full time Bachelor of commerce programme only
to be told that they can only register under IDE part time programme
whose duration is three years compared to the two years offered at
the full time programme.
Applicants
therefore, submit that the action or conduct of the respondent is
unreasonable for the following reasons:
It
is practice that the admission is only on condition that one obtains
a credit or distinction as stipulated or provided in the rules.
The
past practice accords a legitimate expectation of admission to all
IDE students who meet the passing standards set out in the rules.
Respondent
contends that nowhere in the regulations does it state that holders
of a Diploma in commerce (IDE) automatically qualify to transfer to
the Bachelor of commerce without specifying whether it is part time
or the full time. Respondent states that it was neither an express
nor an implied condition that the applicant would automatically
transfer to the Bachelor of commerce full time programme if they pass
with either the credit or distinction categories,
3
According
to respondent the Bachelor of commerce full time programme is
ordinarily Two years for the full time students only and the
applicants are not elligible to automatic qualification into the
programme by virtue of their results in the part-time Diploma in
commerce programme.'
REGULATIONS.
The
relevant Regulation is 8.5.0.1 of the 2001/02 calendar which states
that the applicants shall be elligible for admission into the Fourth
year of the Bachelor of commerce programme. Applicant Annexure "B"
extracted from 2003/04 calendar (Regulation 9.5.0.1) is worded in the
same manner as 2001/02 calendar Regulation 8.5.0.1.
According
to Regulation 1012.121 in the university calendar, unlike full-time
Diploma in commerce, students who have passed with either a credit or
a distinction category qualify to proceed to full time programme,
students who are on the part time programme have to apply for
transfer into the full time programme. From interpretation of this
regulation it is clear that the respondent has a discretion either to
grant or reject such applications.
From
the foregoing it is clear and not in dispute that the students
entered into agreements with the respondents to pursue part-time
Diploma in commerce. They successfully completed their programme in
2003/04 academic year. On completion of this programme they qualified
to proceed to the next programme, the degree programme. Currently the
University offers two streams of this programme. There is the full
time programme and part time programme. People who are on part time
programme have to apply if they want to enroll on full time
programme.
It
is therefore clear that the relationship between the students and the
university of Swaziland is a contractual one, and having regard to
the
4
provisions
of the above - regulations, it is a contract in respect of each
programme of study. The contract is entered into by acceptance of the
students' application for admission; be it an admission to the
Diploma programme or subsequent admission on completion of the
Diploma into a degree programme.
Applicant's
submission that it has been the practice over the years that students
who successfully complete their Diploma programme and attain a credit
or a distinction automatically transfer to the degree programme on
full time basis cannot stand. In the absence of an implied term
binding the university to acceptance in the next programme, the
university is free to accept or refuse the offer contained in the
application for enrolment in the full time programme.
The
decision of a person (in this case the university) not to accept an
offer to enter into a contract is ordinarily not one which has to be
arrived at after application of the rules of natural justice, . The
application for admission constituted an offer to contract with the
university. The university is free to accept or reject the offer
without affording the applicant an opportunity to be heard or
furnishing reasons for rejection. SEE SIBANYONI AND OTHERS VS THE
UNIVERSITY OF FORT HARE 1985 (1) SA 19 at 30 D.
The
decision by the university not to admit the students in the full time
programme was pure administrative as opposed to a quasi-judicial act
and accordingly the principles of natural justice, and the audi
alteram parten rule, did not apply.
It
is the opinion of this court and one supported by respondent's
submission that the university had acted bona-fide and had applied
its mind properly to the applications and that it had come to the
conclusion
5
that
due to the shortage of classrooms and other teaching aid the part
time students should pursue their degree programme on part time
basis.
In
ALFRED MCALPINE AND SON (PTY) LTD VS TRANSVAAL PROVINCIAL
ADMINISTRATION 1974 (3) SA 506 at 532 H - 533 B it as held as
follows:
"The
court cannot make contracts for people; nor can it supplement the
agreement of the parties merely because it might be reasonable to do
so. Before it can imply a tacit term the court must be satisfied,
upon a consideration in a reasonable and business like manner of the
terms of the contract and the admissible evidence of the surrounding
circumstances, that an implication necessarily arises that the
parties intended to contract on the basis of the suggested terms ...
The practical test to be applied is ... 'you must only imply a term
if it is necessary in the business sense to give efficacy to the
contract; that is, if it is such a term that you can be confident
that if at the time the contract was being negotiated, someone had
said to the parties: "what will happen in such a case?"
They would have both replied: Of course, so-and-so. We did not
trouble to say that; it is too clear".'"
For
the foregoing reasons and conclusions the application is in the
circumstances dismissed. Costs will follow the event.
K.P.
NKAMBULE
JUDGE.
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