THE
HIGH COURT OF SWAZILAND
CASE
NO.3749/02
In
the matter between:
SANELE
CELE 1st Applicant
MBONGENI
DLAMINI 2nd Applicant
MAKHOSINI
MAMBA 3rd Applicant
LINDA
NXUMALO 4th Applicant
and
UNIVERSITY
OF SWAZILAND 1st Respondent
VICE
CHANCELLOR, UNIVERSITY
OF
SWAZILAND 2nd Respondent
CORAM: MASUKU
J
FOR
APPLICANTS: Mr. T.R. Maseko
FOR
RESPONDENTS: Mr. M.B. Magagula
JUDGEMENT
31st
December,2002
The
four Applicants are students of the University of Swaziland, studying
in one or more of its three campuses. They have approached this Court
on an urgent basis, seeking the following relief:
2
1. Waiving
the usual requirements of the Rules of this Honourable Court
regarding notice and service of applications, and hearing this matter
as one of urgency.
2. Declaring
Regulation 1.5.2(a) of the University of Swaziland Regulations for
Student Discipline as amended, to be null and void and of no force
and effect on the ground that it is inconsistent with Article 13 of
the Constitution of the Student Representative Council of the
University of Swaziland as approved by the Council of the University
of Swaziland in terms of Section 24 of the University of Swaziland
Act NO.2 of 1983 as amended.
3. Declaring
the Memorandum issued by the University of Swaziland to all student
(sic) dated 2nd and 3rd December, 2002 respectively null and void and
of no force and effect on the ground that it was issued contrary to
the University of Swaziland Act and statutes promulgated thereunder,
particularly Section 15 thereof.
4. The
Respondents be called upon to show cause if any, on a date and time
to be fixed by this Honourable Court why paragraph 2 and 3 above
should not be made final.
5. Pending
the return date, that paragraphs 2 and 3 operate as an interim order
with immediate effect.
This
application first served before me on the 6th December, 2002,
whereupon the following Order was issued by consent namely, a rule
nisi was issued calling upon the Respondents to show cause why
prayers 2 and 3 should not be made final. The return date was
declared to be the 12th December, 2002. Both parties were put to
terms to file their Answering and Replying Affidavits, respectively.
3
Prayer
5 was however not granted nor applied for by the Applicants for the
obvious reason that it would work some hardship on the Respondents.
Background.
The
facts giving rise to this application may be summarised as follows:-
The Respondents, through their structures amended Regulation 1.5.2(a)
of the Regulations for Student Discipline, which in its amended form
prescribes that Joint Student Body Meetings are to be held on
Saturdays, whereas the Student Representative Council Constitution
(referred to hereinafter as the "SRC Constitution"),
provided that special or emergency meetings may be held if the
majority of the SRC Executive deem it necessary to do so or on a
written request of the holding of the meeting signed by not less than
25% of the Student Body. No days or times were stipulated in the SRC
Constitution for holding any category of meetings.
The
First Applicant was elected as the Chief Electoral Officer and caused
a memorandum to be issued regarding election of Campus Governments.
The first Applicant, as empowered by the Constitution convened a
student meeting for all the campuses but it was not quorate. Notices
for further meetings also hit the same snag. The failure for the
meetings to be quorate was attributed to the amended Regulation
1.5.2(a), which was regarded as unworkable as it prescribes that such
meetings are to be held on Saturdays when the Students have to attend
to their private engagements. The first Applicant and his assistants,
due to frustration in their efforts, perceived to be caused by the
said Regulation, decided to tender their resignations in the last
failed meeting of the 1st December 2002. These resignations
culminated in the breakdown of effective lines of communication
between the Student Body and the University of Administration.
4
The
Administration had prior to that issued a memorandum on Friday 29th
November, 2002, specifying the days and times on which meetings could
be held in each of the Campuses and when Joint Student Body Meetings
could be held. Due to the inability to hold a Joint Student Body
Meeting and out of frustration, the students refused to attend
classes in protest of the amended Regulation. Upon a realisation that
it was becoming impossible to control the students, the Applicants
then decided to withdraw their resignations on the 3rd, 4th and 5th
December, 2002, respectively. The University's response to the class
boycott was to issue an ultimatum to the students informing them that
if they did not return to class on 4th December, 2002 by 09h00, the
University would be closed. The students did not adhere to the
ultimatum and they were therefor instructed to vacate the University
premises as the Institution was declared closed.
It
is on those grounds that the Applicants seek the Court to declare
both Regulation 1.5.2(a) and the ultimatum referred to above, null
and void and of no force and effect.
For
the sake of convenience and redeeming time, I decided, with the
concurrence of Counsel on both sides, to hear the matter on both the
points in limine raised by the Respondents and also on the merits and
I proceeded to do so. I was addressed by both Counsel extensively in
respect of both aspects. I record my indebtedness to them for their
industry and assistance rendered to this Court.
Points
in limine.
At
the commencement of the hearing three points in limine were raised by
Mr. Magagula for and on behalf of the Respondents, namely:-
5
(a) The
Applicants have no authority to represent the Students of the
University as they purport;
(b) Each
of the Applicants does not have the locus standi in judicio to move
the application in view of the fact that they resigned from their
positions and the purported withdrawal of their resignations was
ineffectual.
(c) The
Applicants, including the students they purport to represent, flouted
University Regulations and therefor have unclean hands, which should
lead the Court to exercise its discretion against hearing them.
I
shall now proceed to analyse and consider each of the above points
and to make my Ruling thereon.
(a) Applicants'
lack of authority.
It
was submitted on the Respondents' behalf that in order for the
Applicants to legally represent the students, they were required to
file a resolution by which they were so authorised to launch the
proceedings. It was submitted that failure to provide that authority,
particularly once it has been questioned should serve as a bar to the
Applicants and that the absence of the resolution is sufficient to
lead the Court to the conclusion that the present proceedings are
unauthorised.
In
my view, the proper approach to be followed in such cases, is akin to
that applicable to corporate bodies, i.e. that it is customary and
undoubtedly prudent for an applicant company to annex the resolution
authorising the deponent to represent the company and to sign the
petition or founding affidavit, as the case may be - See DOWSON &
DOBSON V EVANS & KERNS (PTY) LTD 1973(4) SA 136 (ECD) at 137 - 8.
6
In
practice however, the Courts have not adopted an inflexible approach
to an Applicant's failure to file a resolution. This is exemplified
in the following cases:- DOWSON & DOBSON V EVANS (supra) at page
138A, where Addleson J. stated the following:-
"...
but the absence of such a resolution is not necessarily fatal. Where,
as here, it is expressly alleged and is nowhere denied by the
respondent that Lindner is duly authorised by a special resolution of
the Company and where, ex facie the papers, the overwhelming
probability is that he is so authorised, failure to produce the
resolution in question does not conclusively impeach Lindner's
authority to act on behalf of the applicant." (my emphasis). See
the other cases therein referred to.
In
MALL (CAPE) (PTY) LTD V MERINO KO-OPERASIE BPK 1952(2) SA 347
(C.P.D.) at 352 A-B, Watermeyer J. stated the following:-
"Each
case must be considered on its own merits and the Court must decide
whether enough has been placed before it to warrant the conclusion
that it is the applicant which is litigating and not some
unauthorised person on its behalf. Where, as in the present case, the
Respondent has offered no evidence at all to suggest that the
applicant is not properly before Court, then I consider that a
minimum of evidence will be required from the applicant."
The
question to be decided, in view of the foregoing is whether it can be
said that it is the Student Body that is litigating and not some
unauthorised and unknown person on its behalf. Mr. Maseko, for the
Applicant submitted that all the Applicants were acting in their
representative capacities on behalf of the Student Body.
Whilst
the concession made by Mr. Maseko may arguably apply to the 2nd and
3rd Applicants i.e. that the Applicants have applied in a
7
representative
capacity, it certainly cannot apply to the 1st Applicant. I say so
because whilst the 2nd and 3rd Applicants in their Supporting
Affidavits state that they deposed to same in their representative
capacities, the 1st and 4th Applicants claim that they derive the
authority to act by virtue of their positions as Electoral Officers.
It
is clear in my view, regard had to the 1st Applicant's duties as
stipulated in Article 10 of the S.R.C. Constitution, that he is
charged inter alia, with the convening of Joint Student Body meetings
and which it is claimed cannot be done due to the promulgation of the
amended Article 1.5.2(a). This therefor renders him unable to perform
his constitutional duties such that he is in my view entitled ex
officio to move the application, even in the absence of a resolution
from the Student Body. One cannot help but comment that in view of
the difficulties in forming a quorum for Joint Student Body meetings
deposed to by 1st Applicant and which fact is not denied by the
Respondents, it would have been impossible to summon a lawful meeting
even if it was for the purpose of taking a resolution to launch
proceedings of the nature presently serving before Court.
It
is my finding, in view of the foregoing, at least in so far as the
1st and 4th Applicants are concerned, particularly the 1st Applicant,
that the absence of a resolution does not in casu affect the
proceedings insofar as it applies to them. I find it unnecessary to
decide this issue as it relates to the other Applicants. I venture no
opinion thereon. This point in limine therefor must fail and I so
order. My finding is however subject to the question of the
Applicants' locus standi, raised by the Respondents in view of their
resignations.
(b) Locus
standi in judicio.
The
Respondents' next line of attack was on the grounds that the
Applicants do not have the locus standi to bring the proceedings
8
because
they resigned from their positions in the Student Government and that
the purported withdrawal of their resignations was ineffectual.
In
support of this contention, Mr. Magagula submitted that the
withdrawal of the resignations was ineffectual on the grounds that
the letters of withdrawal of the resignations, which were dated 3rd
and 4th December, 2002, respectively, were only received by the
Administration on the 5th December, 2002. There was no student
meeting, so the argument ran, to which the issue of withdrawal of
resignations was tabled for acceptance of the withdrawals as the
University, as far as the students were concerned, had already been
closed.
In
support of his contention, Mr. Magagula referred the Court to
RUSTENBURG TOWN COUNCIL V MINISTER OF LABOUR AND OTHERS 1942 TPD 220
at 224, where Murray J. stated the applicable principles in the
following language:
"The
giving of notice is an unilateral act: it requires no acceptance
thereof or concurrence therein by the party receiving notice, nor is
such party entitled to refuse to accept such notice and to decline to
act upon it. If so, it seems to me to follow that notice once given
is final, and cannot be withdrawn-except obviously by consent-during
the time in excess of the minimum period of notice."
Unfortunately,
the letters of resignation were not annexed to the papers in order
for one to see the contents. In my view however, the Administration
should have no interest or preference in the office bearers of the
Student Government, save their identity. All that they require is
information of who the office bearers are and if they have resigned,
to be advised as to their replacements. If there has been a change of
mind of those who have resigned, the persons to decide
9
whether
the withdrawal of resignations is consented to must be the students,
to whom the resignation should be addressed, the Administration being
notified of the decision.
There
is no iota of evidence on the papers before me that any student, who
would have a substantial interest in the office bearers has taken
issue with the Applicants' withdrawal of their resignations. In this
regard, sight must not be lost of the circumstances under which the
Applicants tendered their resignation and which the Respondents have
not put in issue, namely that it was out of sheer frustration. When
it became evident that their absence was inimical to the interests of
both the Students and the Administration, the Applicants then
withdrew their resignations in order to open the lines of
communication. In the circumstances of this case, it is my opinion
that the case does not assist the Respondents as it appears from
objective facts that the withdrawal of the resignations was accepted
by the Students. It would also appear to me that to transpose
principles applicable to employment law to issues of student
government, which is normally done on a voluntary basis, may be
inappropriate.
I
know of no law, rule, regulation or article in this case, which
precludes a party who has previously resigned from withdrawing that
resignation, particularly as here, where the Applicants' constituency
does not raise issue therewith and none which is on all fours has
been pointed out to me. The Applicants have in their papers cited an
example of a situation where a resignation was withdrawn. In the
absence of any indication that the withdrawal of the resignation
resulted in the fracture of the S.R.C. Constitution, I am of the
considered view that this point in limine is also liable to
dismissal. The conduct of the Respondents, on receipt of the letters
of withdrawal is in any event not one inconsistent with accepting the
withdrawals. If the Respondents did not accept the withdrawals,
wherever that authority would have come from, they did not register
10
their
protest and non-recognition of the purported withdrawals, which
indication would have necessitated the Applicants and their
constituency to take appropriate steps. The Respondents' attitude
towards the withdrawal of resignations appears to me to have all the
hallmarks of an afterthought.
It
is my finding therefor that the Applicants do have the locus standi
in judicio in this matter. They clearly have a direct and substantial
interest in these proceedings, both in their official capacities as
well as individual students. I accordingly declare, as I hereby do,
that this point of law must also fail.
© The
Doctrine of Clean Hands.
Launching
his last salvo, Mr. Magagula urged this Court to use its discretion
by refusing to hear the Applicants as they had dirty hands, thereby
rendering them unfit to approach and touch the pure fountains of
justice as it were. In support of this contention, Mr. Magagula
strenuously argued that the Applicants and the entire Student Body
had engaged in an unlawful boycott, thereby violating University
regulations and procedures. He harped upon the following phrase,
occurring in paragraph 30 of the 1st Applicants' paragraph 3 headed
"Balance of Convenience", found in the Founding Affidavit:-
"The
problem and misunderstanding between the students and the
administration has not been resolved by the irregular closure of the
University. So much so that even when the second semester commences
the dispute will still be unresolved and the boycott may continue."
(My emphasis)
Mr.
Magagula argued that the underlined portion above reflected a disdain
of the University procedures and depicted the Students as hell-bent
on continuing with the unlawful boycott. It was urged that
11
for
the Court to grant an audience to such people who have the temerity
to threaten to continue with an illegal boycott would be against
public policy and would set a bad example.
The
Court was in this regard referred to the case of PHOTO AGENCIES (PTY)
LTD V THE COMMISSIONER OF THE ROYAL SWAZILAND POLICE AND THE
GOVERNMENT OF SWAZILAND 1970-76 SLR 398 at 407, where Nathan C.J.
cited the following excerpt from MULLIGAN V MULLIGAN 1925 WLD 164 at
167-168, with approval :-
"Before
a person seeks to establish his rights in a court of law he must
approach the Court with clean hands; where he himself through his own
conduct makes it impossible for the process of the Court (whether
civil or criminal) to be given effect to, he cannot ask the Court to
set its machinery in motion to protect his civil rights and
interests... Were the Court to entertain a suit at the instance of
such a litigant it would be stultifying its own processes and it
would, moreover, be conniving at and condoning the conduct of a
person, who through his flight from justice, sets the law and order
in defiance."
In
response, Mr. Maseko submitted that if it is indeed true, as alleged,
that the Applicants contravened University regulations, then it was
still open to the University to subject the erring Students to the
disciplinary procedures enshrined in the regulations and rules of
conduct by Students.
One
of the prime issues that persuaded the Court to uphold the doctrine
of unclean hands in the PHOTO AGENCIES case [supra] was the question
of public policy and international relations. In that case, the
Applicant had moved an application for the release of a consignment
of arms imported from Brazil, eventually destined for the
12
Republic
of South Africa, contrary to and thereby circumventing a United
Nations Security Council resolution imposing an embargo on the sale
of arms to South Africa. Swaziland was used as an address to
perpetuate this scheme of deception. The Court refused to use its
processes to give effect to such a nefarious scheme, which would earn
this country the censure and opprobium of the international
community.
The
operative words, in the MULLIGAN judgement (supra) are in my view the
following, "whether the Applicant himself through his own
conduct makes it impossible for the process of the Court (whether
civil or criminal) to be given effect to..."
The
operative standard above accords with the words that fell from the
lips of Lord Denning in HADKINSON V HADKINSON (1952) ALL ER 571 at
574-5. The learned Judge had this to say:-
"It
is a strong thing for a Court to refuse to hear a party to a cause
and it is only to be justified by grave considerations of public
policy. It is a step which the Court will only take when the contempt
itself impedes the course of justice and there is no other effective
means of securing a compliance. Applying this principle I am of the
opinion that the fact that a party has disobeyed an order of Court is
not of itself a bar to his being heard, but if his disobedience is
such that so long as it continues it impedes the course of justice in
the cause by making it more difficult for the Court to ascertain the
truth or to enforce the orders which it may make, then the Court may,
in its discretion, refuse to hear him until the impediment is removed
or good cause is shown why it should not be removed."
In
this case, there is no evidence before Court that the Applicants
themselves actually breached the University rules and regulations by
13
engaging
in the boycott. It does not necessarily mean that because the
students, (and there is no evidence that all of them engaged in the
boycott) that the Applicants were party thereto. More importantly in
my view, Mr. Magagula failed to suggest the manner in which the
Students' conduct in breach of the University regulations could in
any way make it impossible for the process of this Court to be given
effect to. That is in my view the most serious consideration.
Whilst
the breach of the University regulations cannot be condoned by this
Court, there is nothing that warrants that the Applicants or the
Student Body, for that matter, be precluded from approaching the
Courts, bearing in mind that the decision to preclude a party from a
hearing is not lightly taken as it may have the most calamitous
consequences to a party. I therefore agree with Mr. Maseko that if it
is proved that the Applicants and/or the students have run roughshod
over the University regulations, then the proper disciplinary
procedures provided for in the appropriate enactments must be set in
motion at the appropriate time, if the University be so advised.
The
other difficulty with Mr. Magagula's proposition relates to the
conditions to be attached, if any, to the Applicant's preclusion from
approaching the Courts. I say so because it is not possible for them
to now tender to return to the University to abide by whatever
conditions are imposed. This I say in cognisance of the fact that the
University is closed, whereas the resolution of the Us between the
parties is likely from all indications to restore calm to the
disputants.
More
importantly, the considerations that the Court takes into account in
closing its doors to a litigant must be closely scrutinised as did
Thring J. in SOLLER V SOLLER 2001(1) SA 570 (CPD) at 573, E, where
the learned Judge reasoned as follows:-
14
"It
is not lightly that this Court will close its doors to a litigant.
However, a litigant who has contemptuously turned his back on those
doors and has repeatedly treated with contumely (sic) the Judges who
sit within them, as the applicant has done, must not be surprised if
when he attempts to re-enter the halls of justice to seek relief, he
finds the way barred to him until he has purged his contempt before
the very tribunal from which he now seeks justice."
In
the absence of such serious conduct gravely affecting public policy
and which impacts negatively on this Court's ability to enforce its
processes, I find that this point should also fail. See also in this
regard the excerpt from HADKINSON (supra) quoted in full above. In
doing so, the Court must in no way be regarded or perceived as
condoning or legitimating the alleged illegal conduct of the students
in any way. The University regulations must be followed to the letter
by the University itself and Students alike and if there is any
breach thereof by whichever party, then the appropriate measures must
be invoked.
When
the matter proceeded on the merits, there is a legal point which was
raised by the Respondents, which in my view should have been included
amongst the points in limine. It would be proper and convenient to
address it at this juncture and as the fourth point in limine.
(d) Failure
to exhaust local remedies.
It
was argued on behalf of the Respondents that the Applicants,
notwithstanding that they knew of the existence of the channels of
appeal provided for in the Statutes of the University, they decided
nonchalantly to prematurely bring this matter to Court without
15
exhausting
the remedies therein provided. It was argued therefor that the
application should be dismissed with costs.
In
response, Mr. Maseko argued that there was no need for the Applicants
to exhaust local remedies because firstly, the Council to which an
appeal from Senate lay had associated itself with Senate's
conclusions and reasoning. In this regard, the Court was referred to
annexure "M" of the Founding Affidavit, recording a letter
from the University Council which reads as follows, in part;
"11th
September, 2002
The
Secretary-General
Student
Representative Council
C/o
University of Swaziland
KWALUSENI
Dear
Sir,
RE:
YOUR APPEAL TO COUNCIL
The
University Council, at its meeting held on 28th August, 2002 received
and considered your appeal against decisions of Senate on:
•
Conditions
for re-admission of students after the closure of Kwaluseni Campus on
2001/02;
•
New
regulations for holding student body meetings.
After
careful consideration of the reasons for your appeal and other
relevant factors, the Council resolved to uphold the decisions of
Senate on the two issues. However, on the issue of the new
regulations for
16
holding
student body meetings, Council noted that the position may be
reviewed in future."
This
letter was signed by Mr. S.S. Vilakati, the 1st Respondent's
Registrar. Mr. Maseko further argued that the Applicants could
therefor not be said to have had an effective remedy if the matter
was referred by them back to Council, in view of the contents of the
letter under reference. I also understood Mr. Maseko to argue that
there was no duty on the Applicants' part to follow the local
remedies available. In this connection, he referred the Court to
Lawrence Baxter, "Administrative Law", Juta & Company
1st ed, 1984, at page 720, where the learned author cited with
approval a passage from GOLUBE V OOSTHUIZEN 1955(3) SA 1(T) at 4,
where De Wet J stated the following: -
"The
mere fact that the Legislature has provided an extra-judicial right
of review or appeal is not sufficient to imply an intention that
recourse to a Court of law should be barred until the aggrieved
person has exhausted his statutory remedies."
I
have recently had occasion to consider the very question of
exhaustion of local remedies in JABULANI B. SIMELANE VS THE
COMMISSIONER OF POLICE AND THREE OTHERS CIVIL CASE NO.755/2000 at
page 11. In addressing the question whether domestic remedies should
be exhausted first and therefor deciding whether the matter should be
deferred first, I cited from Baxter [op cit) at page 720, where the
learned author stated that the operative and paramount considerations
are the following:-
(a) whether
the domestic remedies are capable of providing effective redress in
respect of the complaint;
(b) whether
the alleged unlawfulness has undermined the domestic remedies
themselves.
17
In
order to address the two requirements, it is in my view necessary for
one to chronicle and place the events in proper historical
perspective. After the Council wrote annexure "M", referred
to above, it is common cause that the Registrar received an
application from the 1st Applicant and in which a request was made
for the convening of a mid-week Student Body meeting. The memorandum
in reply thereto, dated 12th November, 2002, reads as follows and is
marked "N" to the Replying Affidavit:-
"RE:
YOUR APPLICATION TO CONVENE A MID-WEEK MEETING
I
am writing to acknowledge receipt of your letter dated 8th November,
2002 on the abovementioned subject matter.
As
you are aware, in terms of Regulations for Student Discipline, as
amended by Senate and endorsed by Council recently, Student Body
Meetings can only be held during the day on Saturdays.
You
may however, make representations to the Senate on the matter at a
regular meeting to be held on Tuesday, 19th November, 2002.
In
the meantime you are strongly advised to adhere to the regulations."
On
the 29th November, after the meeting referred to in annexure "N"
above, the Acting Registrar wrote a memorandum of even date, marked
"D2", which was addressed to the Chairpersons of the Campus
Governments, whose contents follow herein below:-
18
"RE:
CONVENING OF STATUTORY/EXTRA-ORDINARY STUDENT BODY MEETINGS
The
University Senate at its meeting held on 29th November, 2002 resolved
as follows:-
1. That
the domestic Campus should hold their Statutory/Extra-Ordinary
Domestic Student Meetings on Monday afternoon, between 1.00pm and
5.00pm.
2. That
the Kwaluseni and Mbabane Campuses should hold their Statutory
Extra-Ordinary Domestic Student Body Meetings on Friday afternoons
between 1.00pm and 5.00pm.
3. That
Joint Statutory/Extra-Ordinary Student Body Meetings be held on
Friday afternoon between 1.00pm and 5.00pm and/or weekends between
7.00am and 4.00pm."
It
is clear from the contents of annexure "N" that the issue
of the holding of meetings by students was not closed, hence an
invitation was extended by the Acting Registrar to the 1st Applicant,
to make representations to Senate on the 19th November. The
Respondents referred to annexures "LM1", being such
representations from the Luyengo, Kwaluseni and Mbabane Campuses. I
immediately discounted the memorandum from Luyengo as having been a
response to annexure "N", for the reason that it pre-dated
annexure " N", it bearing the date 31st October, 2002 on
the face of it.
It
is in my view however clear that it was addressed to the Senate's
Secretary and suggested that Monday would be suitable for those
students. This Senate considered, as can be seen from annexure D2 of
the Replying Affidavit. I am prepared to accept the memoranda from
Kwaluseni and Mbabane as having been written in response to annexure
"N". Mr. Maseko did not argue otherwise.
19
It
is in my view clear that Senate considered the representations,
conceding in the process that the issue was not closed and as a
result accommodated the Students by sanctioning meetings, not for a
particular request or a limited duration of time, but rescheduling
and in effect amending Regulation 1.5.2(a) to the extent reflected in
annexure "D2".
The
students did not take advantage of the amendment contained in
annexure "D2", in order to at least experiment how the
changes contained therein would affect or improve their quest to form
a quorum in Student Body meetings. One thing led to another and the
boycott eventually resulted, leading to the closure of the
institution. In my view, Mr. Magagula's point that the local remedies
were not exhausted appears to be valid because not only did the
Students not seek to take advantage of annexure "D2", but
they never appealed at all to Council against Senate's resolution
contained in "D2". I say this because Senate's shifting of
positions on the Regulation in issue in my view afforded the students
a new and fresh opportunity to appeal to Council. This they evidently
did not do.
In
considering the two pronged requirements by Baxter referred to above,
it is my considered view, in the light of the events recorded above
that the domestic remedies available i.e. appealing again to Council
against Senate's decision, were capable of providing effective
redress to the Students. Council was clearly at large to deal with
the matter, juxtaposing in the process, the Students' contentions on
the one hand, and Senate's resolution on the other. Mr. Maseko's
contention that Council had dealt finally and definitively with the
issue on 9th September 2002 must be rejected as it is not supported
by the letters and events considered above.
20
Regarding
(b), it would appear, and I stand corrected on this, that the
question of unlawfulness of the Regulation in question has, from the
correspondence filed of record, been raised before this Court for the
very first time. None of the 1st Respondents' bodies, it would appear
were ever called upon to decide the issue as presently presented. No
unlawfulness has in this case been raised which would be regarded as
having undermined the domestic remedies themselves. No question of
bias, prejudice or such other improper conduct has been raised which
would serve to undermine the local remedies in casu.
It
is well to remember the relevant factors that Courts take into
account in determining the course of these matters. In this regard,
Baxter, [op tit) at page 720-721 cites the following excerpt from
LAWSON V CAPE TOWN MUNICIPALITY 1982(4) SA 1© at 6-7 with approval.
The following appears:-
"In
considering the question whether, on the proper construction of the
statute, judicial review is excluded or deferred, Courts have regard
to a number of factors. Among these are: the subject matter of the
statute (transport, trading licences, town planning and so on); the
body or person who makes the initial decision and the basis on which
it is to be made; the body or person who exercises appellate
jurisdiction; the manner in which that jurisdiction is to be
exercised, including the ambit of any 'rehearing' on appeal; the
powers of the appellate tribunal, including its power to redress or
'cure' wrongs of a reviewable character; and whether the tribunal,
its procedures and powers are suited to redress the particular wrong
of which the applicant complains."
It
would not do to merely pay lip-service to these important
considerations, which have in part been dealt with above. It is in my
view important in casu that the matter be deferred for the reasons
that
21
although
some legal issues do arise, they are interwoven with issues of
policy, which should best and first be dealt with by the institution
concerned before the intervention of the Courts.
It
is my considered view that this is a proper case for deferment until
the local remedies, which have clearly not been exhausted are fully
exhausted. In my finding, this point is well taken and I therefor
find it unnecessary and inopportune to consider the matter on the
merits and on which as I have stated before, I was fully addressed.
(e) Conclusion.
In
sum, the application is deferred, pending the exhaustion of local
remedies. Costs will follow the event.
T.S.
MASUKU
JUDGE
