University policy and national legislation against equality

May 1st, 2014
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Dean of the Law Faculty of the University of North West and Others v Masisi (SCA) (unreported case no 297/2013, 20-2-2014) (Navasa, Mhlantla and Petse JJA, Van Zyl and Swain AJJA)

By Tshepo Mashile

The case of Dean of the Law Faculty of the University of North West and Others v Masisi deals with an appeal against a judgment of the Equality Court, Mahikeng (Lacock J). Crisply put, the litigation leading up to the present appeal arose because the respondent, Moramang Simon Masisi, was aggrieved that the three appellants, the Dean of the Law Faculty of the North-West (NWU), the Vice Chancellor of the NWU and the NWU Statutory Body represented by the Rector of the Mahikeng campus, refused to give him academic credit for all the courses he had completed in obtaining his BProc degree from the University of the North (currently the University of Limpopo) in pursuance of his LLB degree for which he had latterly registered at the NWU. Essentially, the respondent complained that he was being discriminated against and that his constitutional right to equal treatment had been violated. The reasoning on which this was based appears to be as follows: Students who began and completed their BProc degrees at the NWU were given credit for all their courses or modules completed in attaining the degree, while those who obtained their BProc degrees from other universities were treated differently and only obtained credit for 50% of the courses completed in obtaining their BProc degrees. This discriminatory treatment, as alleged, was contrary to the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act) (at para 1).

In refusing to recognise more than 50% of the courses or modules completed by the respondent at the University of  Limpopo, UNW considered itself bound by its own general academic rules to that effect. Furthermore, UNW considered itself bound by s 18(2) of the Joint Statute of the Universities in the Republic of South Africa approved by the Minister of Education, Arts and Science under the Universities Act 61 of 1955, the relevant provisions of which require a minimum period of attendance at the university to which he has applied for exemption and which in addition stipulates that a student has to complete at least half of the courses prescribed for the degree at such university (at para 2).

The respondent took his complaint to the Equality Court, established in terms of s 16 of the Equality Act, which made the following order (at para 3):

‘1. The provisions contained in the paragraphs 15.1.1, 15.1.3, 15.2.1 and 15.2.3 of Rule G15 of the General Academic Rules of the North West University are hereby struck down and declared null and void.

  1. The proviso to Rule A5.7.1 of the General Academic Rules of the North West University reading, “provided that exemption shall not be granted for more than half of the number of modules required for the curriculum” is hereby struck down and declared null and void.
  2. Section 18(2)(b)(i) and (ii) of the Joint Statute of the Universities in the RSA approved by the Minister of Education, Arts & Science under the Universities Act no 61 of 1955 (the Joint Statute), is hereby struck down and declared null and void, except to the extent that section 8(2)(b)(ii) apply to candidates writing the degree of Bachelor of Education (B.Ed) or Bachelor of Physical Educaiton (B.Ed.Ph.) a Bachelor of Philosophy (B.Phil.).
  3. The first to third respondents are directed to grant exemption to the applicant for purposes of writing the LLB degree of all those applicable courses and/or modules successfully completed by the applicant at the University of the North (presently the University of Limpopo) for his B.Proc degree.
  4. The first to third respondents are directed to jointly and severally pay the applicant’s costs of the application.’

The breadth of the order referred to above is such that the Joint Statute of the Universities in South Africa, which has statutory underpinning and is consonant with the Higher Education Qualifications Framework, published by the Minister of Education, acting within her statutory powers, has been set aside. The order clearly affects all universities in South Africa and impacts on government policy. It is necessary to point out that, although the Minister of Education was cited as a party to the litigation in the Equality Court, the respondent ultimately indicated that no relief would be sought against the minister. As a consequence, the minister did not participate in the proceedings in the Equality Court. None of the other universities was cited as a party (at para 4).

Before the court the Higher Education South Africa NPC (HESA), a non-profit company, appeared as amicus curiae. HESA represents 23 South African universities and asserts that it is the voice of South Africa’s university leadership. HESA contended that all universities in South Africa are required to comply with the joint statute, which is delegated legislation and remains in force in terms of s 74(6) of the Higher Education Act 101 of 1997 and that the policy underlying the joint statute is supported by it. The Higher Education Qualifications Framework published in October 2007 by the Ministry of Education has the same underlying policy (at para 5).

In its application to be admitted as amicus curiae in this court, HESA provided the following justification for the policy referred to in the preceding paragraph:

‘Section 18(2)(b) of the Joint Statute has the effect that a student must complete at least half of his or her university courses at the university conferring the degree. This enables the university conferring the degree to have confidence that the student does indeed meet the standards which it proclaims and on which its reputation rests. … in passing that in certain prestigious foreign universities, no recognition whatsoever is given to courses passed at other universities, no doubt for much the same reason.’

Analysis of legal principle and finding

The court found that the order set out above was probably due to a lack of proper thought being given to whether those issues could viably be delinked from the statutory underpinning for university policy. Before this court the questions were raised about the power of the Equality Court to issue the order referred to above. The appellants also contended that it was not competent for the Equality Court to decide issues beyond those identified at the directions hearing.

The court found further that it is undesirable and inappropriate for courts to make orders declaring statutory provisions and policy directives invalid without providing relevant organs of state an opportunity to intervene and that it is indeed undesirable for courts to make orders affecting any party without affording such party an opportunity to oppose the relief being sought. In the present case, the Minister of Education has a direct abiding and crucial interest in the issues that arise from the respondent’s complaint and which are affected by the order referred to above. In a similar vein the court referred to r 10A of the Uniform Rules of Court.

It was further held that universities or its collective voice, HESA, have a vital interest in the litigation and a possible result. They too were not cited or involved in the litigation in the Equality Court. The Minister and HESA were both interested parties and ought, at the very least, to have been afforded an opportunity to deal with all the issues raised by the respondent’s complaint, including the question of the competence of the Equality Court to make an order setting aside legislation.

Having regard to what is set out above, the parties were agreed and the court made the following order (at para 12):

‘1. The appeal is upheld to the extent reflected in the paragraphs that follow –

  1. The order of the Equality Court, North West High Court is set aside;
  2. The dispute is referred back to the Equality Court, North West High Court to be dealt with de novo;
  3. The respondent shall ensure that he will serve a copy of this order and founding papers stating the relief he seeks on all interested parties including (but not limited to) the Minister of Education, The Council on Higher Education, Higher Education South Africa (HESA) and affording them an opportunity to join the dispute and make representations thereon;
  4. Any party so identified must respond within the time periods provided in Rule 6 of the Uniform Rules;
  5. The Equality Court, North West High Court shall take steps to ensure that the dispute is determined as expeditiously as possible, and may issue directions for the conduct of the proceedings;
  6. The costs of the proceedings in the Equality Court and in this Court shall be costs in the cause.’

Tshepo Mashile LLB (University of Limpopo) is an attorney at Ngwenya Attorneys in Pretoria.

This article was first published in De Rebus in 2014 (May) DR 54.