Tsabedze v University of Swaziland (51/10) [2011] SZSC 16 (31 May 2011);

 

IN THE SUPREME COURT OF SWAZILAND

 

 

HELD AT MBABANE                                                CIVIL APPEAL CASE

NO. 51/2010

 

 

 

In the matter between:

 

 

 

Nonhlanhla Tsabedze

 

 

VERSUS

 

 

The University of Swaziland                      

 

 

 

 

Coram                                                      M. M. Ramodibedi CJ

                                                                S. A. Moore JA

                                                                I. G. Farlam JA

                                                                       

 

For the Appellant                                     Mr.L. M. Simelane  

 

SUMMARY

 

Applicant to University of Swaziland for admission to study for Bachelor of Arts in Humanities Degree offered admission - Subsequently discovered that Appellant did not have required entrance qualification – Offer withdrawn – Application for Order directing University to admit Applicant dismissed with costs by Court a quo – Specific Performance refused – Appeal dismissed with costs – Public Policy considerations considered – Standards and reputation of University taken into account – Appellant failing to submit the record for certification within the time prescribed by the Rule – Appeal deemed to have been abandoned.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

__________________________________________________________________

JUDGMENT

__________________________________________________________________

 

 

MOOREJ.A

 

OPENING

 

[1]    This is the case of the disappointed student.  She had applied for and been granted admission to study for the Bachelor of Arts in Humanities degree in the University of Swaziland in the 2010/2011 academic year.  Her acceptance was based on the erroneous premise that she had qualified for admission under Section 040.23 (vi) of the University of Swaziland’s Academic General Regulations which reads:

 

 “040.23-“candidates who do not have any of the

qualifications mentioned above may apply for admission

through the mature age entry scheme, the conditions of

which shall be as follows;

(vi)- If in the opinion of the University a candidate has complied successfully with the conditions (i) to (v) above he/she will be required to sit a special entrance examination which will consist of a general paper (English) and a special paper in the candidate’s intended field of study ….  For candidates applying to the Faculty of Humanities, …. the special paper will be the Aptitude Test.”

 

[2]    Under the foregoing entrance qualification requirements stipulated in the Academic General Regulations for prospective entrants under The Mature Age Entry Scheme, the Appellant was faced with two obstacles standing in her path to admission.  The first was the all important general paper (English) and the second was, for her, the Special Aptitude Test paper.  The results show that the Appellant scored 53% in the Aptitude Test:  but her application was ultimately rejected on the basis that her English Test score (of 47%) fell below 50% which was evidently the minimum passing score.

 

[3]    The Appellant was undoubtedly frustrated that she missed the passing mark by only 3%.  But human affairs are replete with heart-breaking anecdotes of aspirants coming up short of the beckoning goal by a mere whisker.  By letter dated 16^th August, 2010, the Registrar of the University regretted the error and undertook “to refund the acceptance fee which the Respondent had already paid and to reimburse her for transport expenses incurred as a result of the error.”

 

[4]    The Appellant was not mollified.  She gave instructions to her Attorneys who argued in a letter of 25^th August 2010 that what they called the University’s ‘unilateral withdrawal’ of the Appellant’s admission to study was unlawful.  They then threatened that if, inter alia, she was not admitted “to study the Bachelor of Arts Humanities programme through the Mature Age Entry Scheme, legal action would be taken against the University without further notice.”

 

[5]    The University did not quail.  It stood its ground.  The Appellant then launched an urgent Notice of Motion to be heard on the 17^th September 2010 seeking orders:

 

“2.       Directing the Respondent to register the applicant to study the Bachelor of Arts in Humanities forthwith.

3.         Alternatively; directing the Respondent to register the Applicant to study any other course that she qualifies to pursue in terms of her O’Level results.”

 

[6]    Affidavits and supplementary affidavits having flown back and forth gratuitously, the matter was heard on 12 and 13 October, 2010 by Masuku J who gave a comprehensive and well reasoned judgment one week later in which he set out in some detail the factors which led him to find against the Appellant on the issues of specific performance, offer and acceptance, exemption-clauses claims which limit a party’s liability,  the extent to which the issues were affected by public policy considerations, the appropriate costs order and the procedural question of the filing of further affidavits without leave.  The judgment was liberally garnished with obiter dicta which, though not strictly necessary for deciding the issues before the Court, nevertheless contain prudent counsel for all parties concerned and for all of its readers.

 

THE APPEAL

 

[7]    The Appellant mounted a broad spectrum attack upon the judgment of the Court a quo.  There were seven strands to it.  The Judge a quo is said to have erred in law and fact:

 

1. “In dismissing the application on the basis of the clause on the letter of offer which was not the Respondent’s case in the pleadings.
2. In holding that the respondent was legally entitled to withdraw the offer for admission after the appellant had accepted it. 
3. In holding that the clause on the letter of offer could be invoked even after the offer had been accepted.
4. In holding that the appellant did not meet entry requirements in that she obtained a fail mark for English.
5. In holding that the appellant was admitted in error notwithstanding that according to the respondent’s pleadings appellant was admitted following a recommendation made by the Faculty of Humanities.
6. In holding that appellant’s case was not a proper case in which to invoke the remedy of specific performance.
7. In holding that the principle in the Tsabedze case was applicable in the appellant’s case.  He failed to consider that there were special circumstances in the appellant’s case which warranted the remedy for specific performance.
8. In holding that the good name, quality and reputation of the respondent had to be protected at the expense of the appellant’s rights though the alleged error had been committed by the respondent.  The court a quo failed to consider that the respondent had failed to live up to the proficiency the court protected.”

 

[8]    The Respondent submitted in limine that:

 

1. “The Appellant’s appeal is not properly before Court and is deemed to have been abandoned in terms of rule 30 (4) of the Supreme Court of Swaziland rules as the Appellant has filed the record of proceedings out of time and no application for condonation for the late filing is before court.

 

1. The Rules of the Supreme Court of Swaziland provide in Rule 30 (1);

 

30 (1)-The Appellant shall prepare the record on appeal in accordance with sub-rules (5) and (6) hereof and shall within 2 months of the date of noting the appeal lodge a copy thereof with the Registrar of the High Court for certification as correct.

 

30 (4)-subject to rule 16 (1), if an Appellant fails to note an appeal or to submit or resubmit the record for certification within the time provided by the rules the appeal shall be deemed to have been abandoned.

 

3.  The record filed by the Appellants was filed out of time in that the appeal was filed on the 18^th November 2010 and the record filed on the 18^th January 2011 therefore the two months in terms of the Supreme Court rules (30 (1)  had elapsed on the 17^th January 2011.

 

  4.   Furthermore the record served by the Appellants was not certified by the Registrar in terms of Rule 30 (1) and as such in accordance with Rule 30 (4) the Appellants appeal is deemed to have been abandoned.  No condonation application has been prepared by the Appellants for the late filing of the record or lack of certification by the Registrar of the High Court.  It is submitted therefore that there is no appeal pending before the above Honourable Court;

See – United Plantations Swaziland v Elphas Gina & Others Case No. 15/2007 Industrial Court of Appeal (unreported).;

ManziniCityCouncil v Workers Representatives CouncilIndustrial Court of Appeal Case No. 2/99 – (unreported.)”

 

[9]    In Thokozile Dlamini v Chief Mkhumbi Dlamini and the Commissioner of Police Civil Appeal No. 2/2010, swazilii .org 2010 when the Appellant filed the record of proceedings she was out of time by two (2) months. Relying on Rule 30 (4) of the Supreme Court Rules counsel for the Respondent argued that the appeal must be deemed to have lapsed.  He contended that the appeal fell to the dismissed as such.  The Honourable Chief Justice Ramodibedi placed so much importance upon a faithful and timely compliance with the rules of this Court that he restated what he had earlier declared from the bench of this Court in the Johannes Hlatshwayo case.  Paragraph [8] of Dlamini v Dlamini provides a cautionary warning for those who are minded to be dilatory in meeting the deadlines laid down in the rules.  It reads:

 

“[8]      As I had occasion to observe in a similar situation in the case of Johannes Hlatshwayo v Swaziland Development and Savings Bank and Others, Civil Appeal No. 21/06, this Court has on numerous occasions warned that flagrant disregard of the Rules of Court will not be tolerated.  It bears repeating what I said in paragraphs [16] – [19], namely:-

 

“[16]    Similarly, it is evident in my view that the attitude evinced by the appellant in the instant case is that the Rules of this Court are unimportant and fall to be disregarded with impunity.  It is thus necessary to disabuse litigants of such attitude lest the justice system in this jurisdiction falls into disrepute.  To make matters worse, the appellant has not even bothered to make an application for condonation of all of the breaches of the Rules as fully set out above.  He has thus treated the Court in a cavalier manner.

 

[17]      It requires to be stressed that the whole purpose behind Rule 17 of the Rules of this Court on condonation is to enable the Court to gauge such factors as (1) the degree of delay involved in the matter, (2) the adequacy of the reasons given for the delay, (3) the prospects of success on appeal and (4) the respondent’s interest in the finality of the matter.”

 

[10]   Under Rule 8 (1) of the Supreme Court Rules, the Notice of Appeal should have been filed within four weeks of the 20 October 2010 which is the date of the written judgment appealed against.  The Notice of Appeal was in fact filed on the 18 November 2010 which was an excusable one day late.  Such is the importance of Subrule 8 (1) that Subrule 8 (2) forbids the Registrar from filing any Notice of Appeal which is presented after the expiry of the period referred to in paragraph (1) unless leave to appeal out of tune has previously been obtained.

 

[11]  There are built-in sanctions in the body of the rules for non-compliance with them.  Rule 30 (4) stipulates that if the Appellant fails to note an appeal or to submit or resubmit the record for certification within the time provided by this rule, the appeal shall be deemed to have been abandoned.

 

[12]  In the appeal before us, the timeline is as follows:

               

Date	Description or Action
20 October 2010	Written judgment delivered
17 November 2010	Last day for filing Notice of Appeal
18 November 2010	Notice of Appeal filed
17 January 2011	Last day for lodging a copy of the record of appeal with the Registrar of the High Court for certification as correct.
18 January 2011	Record of Appeal filed
No date	Certification of the record as correct by the Registrar not obtained by the Appellant.

[13]  The above Table illustrates that the appeal was noted one day late.  This is a trifling lapse and can be condoned by the Court mero moutu.  So can the lodging of the record of appeal one day late.  However the failure of the Appellant to obtain the required certification of the record as correct by the Registrar of the High Court is much more serious. 

 

[14]  There has been no explanation for this failure, nor has there been any application for condonation of what, by any standard,  is a critical non compliance with an important rule.

 

[15]  In the absence of a certified record, this Court cannot properly adjudicate upon the merits of an appeal with what could well turn out to be an inaccurate or incomplete record.

 

[16]  These egregious missteps by the Appellant have by themselves alone scuppered any prospects of success of the appeal.  But, in the Court below the topic of specific performance loomed so large, and the Appellant has laid so much stress upon it in her heads of argument that I think it useful that something should be said upon that subject here.

        SPECIFIC PERFORMANCE

 

[17]  The Judge a quo at paragraph [46] of his judgment correctly stated the applicable legal principle when he said “that in granting or refusing to grant the remedy of specific performance, the Court exercises a judicial discretion which must take into account all the relevant facts.”  In Nondlela Suzan Konyana v Ngwane Park Township (Pty) Limited Civil Appeal Case No. 58/09, swazilii.org 2010 the most recent judgment of this Court on this topic, Foxcroft JA wrote at paragraph [3] of his so far unreported judgment that:

 

“Ms. Van der Walt referred us to the well-known decision in South Africa of Haynes v Kingwilliamstown Municipality 1951(2) SA 31 (AD) 371 at 378H.  She submitted, citing a passage from that judgment, that specific performance should not be granted in this matter, as it –

 

“would operate unreasonably hardly on the defendant.”

 

In the more recent decision of the same court in Benson v S.A Mutual Life Assurance Society, 1986(1) SA 776 (AD) at 783 C-D, Hefer JA, in an “elucidation” of what De Villiers AJA had said in Haynes v Kingwilliamstown Municipality, said the following:

 

“This does not mean that the discretion is in all respects completely unfettered.  It remains, after all, a judicial discretion and from its very nature arises the requirement that it is not to be exercised capriciously, nor upon a wrong principle (Ex parte Neethling (supra at 335)).  It is aimed at preventing an injustice – for cases do arise where justice demands that a plaintiff be denied his right to performance – and the basic principle thus is that the order which the Court makes should not produce an unjust result which will be the case, e.g, if, in the particular circumstances, the order will operate unduly harshly on the defendant.”

 

 [18]In the Sixth Edition of The Principles of the Law of Contract by A.J. Kerr at page 680 the learned author, relying upon the authority of Benson v S A Mutual Life Assurance Society 1986 1 SA 776 (A) at 782J – 783C stated the principle that “There are no ‘rules’ governing the exercise of the discretion.”  He then incorporated into his text the excerpt from the judgment which was cited by Foxcroft JA in Konyana supra.  Foxcroft JA analysed the dicta in Benson in this way at page 4 paragraph 3 of his judgment in Konyana where he said:

 

“The effect of the judgment in Benson v Mutual Life Assurance Society is to make clear that the discretion to be exercised in cases of this kind is not a completely unfettered one. Specific performance, if chosen by a plaintiff in preference to a claim for damages and where the right to relief is established, will be granted unless it will produce an unjust result.  The discretion is therefore a discretion not to grant specific performance where it is sought.  It is not a wide, unfettered discretion to grant either specific performance or damages.”

 

[19]  There are of course signposts by which a Court may be guided in determining whether or not to grant specific performance where it is sought.  I shall refer only to some of them which have a bearing on this case.  But before doing so it would be beneficial to extract some of the material from a short but pithy judgment the facts of which mirror those of the instant appeal to the point of being almost identical.  In Tsabedze, Siphiwe v University of Swaziland 1987 – 1995 (4) SLR 419 Dunn ACJ draws from several flowing springs of authority with which to validate his judgment.  A central issue in that case was whether or not specific performance was an appropriate remedy.  At pages 422h to 423k Dunn ACJ quoted from a decision of the South African Appellant Division which has maintained its soundness of principle for almost a century.  The passage reads:

“In the case of Farmer’s Co-operative Society v Berry 1912 AD 343, Innes JA stated at 350:

‘Prima facie every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, as far as possible, a performance of his undertaking in terms of the contract.  As remarked by Kotze CJ in Thompson v Pullinger (1894) 1 OR 301:

‘the right of a plaintiff to the specific performance of a contract where the defendant is in a position to do so is beyond all doubt.’

 

a                                  It is true that courts will exercise a discretion in determining whether or not decrees of specific performance will be made.  They will not, of course, be issued where it is impossible for the defendant to comply with them.  And there are many cases in which justice between the parties can be fully and conveniently done by an award of damages.’”

            Dunn ACJ continued:

b          The court’s discretion to grant or to refuse an order for specific performance must be exercised judicially.  This discretion is not confined to specific types of cases, nor is it circumscribed by rigid rules.  Each case must be

c          decided in the light of its own circumstances. See Gibson [South African Mercantile and Company Law, 4^th Edition] at 101, Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 at 783. 

 

Dunn ACJ also cited the statement of Hefer JA inBenson v SA Mutual Life Assurance Society 1986 (1) SA 776 at 783 D-E that:

“the remedy of specific performance should always be granted or withheld in accordance with legal and public policy.”

 

[20]  Expressing the essence which he had extracted from the materials cited, and applying the authoritative principles to the case before him, Dunn ACJ continued at page 423f – 424a:

       

f                       “Turning to the present application, the respondent has a specific regulation dealing with the standard to be attained for transfer from the

g               diploma to the degree programme.  That regulation must be applied uniformly and equally to all students completing the diploma programme.  Students who do not satisfy the requirements of the regulation have no right to transfer to the fourth year of study.  The error on the part of

respondent can never cloak the applicant with the necessary            qualification

h                      for transfer.  The argument that this is an isolated incident and that the necessary examinations and satisfying the necessary requirements in order to be awarded the degree is untenable.  Students failing to achieve

i                       the required qualification for transfer could, on the basis of this argument, demand to be given an opportunity to prove their ability in the degree programme.  This would render meaningless the very clear terms of the relevant regulation.  The respondent’s error was discovered relatively early in the applicant’s entry into the degree programme and no special

j                       circumstances exist warranting the continuation of the undue advantage at which she has been placed by the respondent’s error. 

a                      The University is a public institution of higher learning and public policy dictates the University be seen to adhere to and to apply those standards which have, in accordance with its aims and objectives, been set.”

 

[21]  Kerr on the Law of Contract at page 682 boldly asserts that there is no onus of proof in regard to the exercise of the discretion.

“The discretion to refuse to order specific performance being the Court’s, the Court is entitled to arrive at its decision without being bound by any rules relating to the onus of proof.”

 

[22]  Kerr also states the principle at page 683 that:

 

“A claim for specific performance is only competent if the plaintiff has performed or is ready and willing to perform any obligations resting on him which are due and reciprocal.”

 

[23]  In casu, the Appellant was incapable of performing one of the basic obligations which was an essential pre-requisite to admission.  She did not fulfil the requirement of passing the general paper in English.

 

[24]  The Judge a quo relied heavily upon the Tsabedze case as he was fully entitled to do because of the soundness of the judgment in the Tsabedze case and the close affinity between that case and the one now before us.  Not the least of the considerations in both cases were the public policy implications of forcing the University, which is a public institution of higher learning of both national as well as international repute, to tarnish its image and debase its standards by discriminating unjustifiably in favour of an applicant who has, on her own acknowledgement, failed to meet the minimum requirements for admission.  Masuku J gave due consideration to all of the applicable principles and, in my view, very properly exercised his judicial discretion against making an order for specific performance.  It follows ineluctably therefore that the appeal must fail on this ground also.

 

        ORDER

[25]  It Is the order of this Court that:

 

        (i)     The appeal be dismissed with costs.

                                                                                   

                                                                                    ______________________________

S. A. Moore

                                                                Justice of Appeal

 

________________________

I agree                                              M. M. Ramodibedi

Chief Justice

 

 

                                                        ________________________

I agree                                              I. G. Farlam

                                                        Justice of Appeal

 

                                                       

 

 

 

Delivered in open court on this 31^st day of May 2011.