Excellence College of Engineering Cosmetology and Engineering v Director-General of Higher Education and Training and Another (127802/24) [2024] ZAGPPHC 1323 (4 December 2024)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 127802/24

Date of Hearing: 12 November 2024

Handed down: 4 December 2024

(1) REPORTABLE: YES / NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

DATE: 4/12/2024

SIGNATURE

In the matter between:

THE EXCELLENCE COLLEGE OF

ENGINEERING COSMETOLOGY

AND ENGINEERING

APPLICANT

AND

THE DIRECTOR-GENERAL OF HIGHER

EDUCATION AND TRAINING

FIRST RESPONDENT

THE MINISTER OF HIGHER EDUCATION

AND TRAINING

SECOND RESPONDENT

JUDGMENT

Strijdom, J

1. This is an urgent application wherein the relief sought by the applicant are as follows:

1.1 That this application be heard as one of urgency in terms of Rule 6(12) of this Court.

1.2 Condoning the failure of the applicant to afford the respondents 72 hours notice to respond as prescribed by Section 35 of the General Law Amendmant Act 62 of 1955, if applicable and to condone and exempt

the applicants failure to exhauset any internal remedies.

1.3 That the respondents be interdicted from blocking the applicant’s college from carrying on with business as a Higher education and skills development training centre pending the finalisation of the review application between the parties under case number 2024/125822 issued in this Court.

1.4 Compelling the respondents to immediately after the service of this order upon them to unblock or cause the unblocking of the applicant’s college to enable it to allow its students to register and write their final trimester examinaiton scheduled to comence on the 18th of November 2024.

1.5 That the above orders operate as interim orders pending the finalisation of the review application under case number 2024/125822.

2. Counsel for the respondent argued on a point in limine that this court lacks jurisdiction to adjudicate this matter.

3. After it had heard argument by the parties on the point in limine I decided that the point in limine must be dismissed.

4. As a result of the urgency of this matter the Court issued the order with the prayers in the notice of motion and reserved reasons for its judgment.[1]

5. The reasons for the order now follows.

THE POINT IN LIMINE - JURISDICTION

6. It was stated by the respondents that this matter emanates from the KwaZulu-Natal Province and that the applicant is based in Durban and conduct its trainings and examinations in the parts of KwaZulu-Natal Province. It was further stated that all findings of alleged irregularities took place within the applicant’s college and examination premises which is located in the parts of Durban.[2]

7. In this matter the Department of Higher Education, South-Africa based on certain findings of irregularities opted to decline the application for registration of the applicant.

8. The respondents are conducting business and have their headquarters located within the Court’s jurisdiction.

9. In my view, this Court has jurisdiction to adjudicate this matter. The decision to decline the registration of the applicant was taken within the jurisdiction of this Court.

MANDATORY INTERDICT

10. The applicant was incorporated on the 26th of August 2020 with 18 Leslie Dunnottar being its registered office address. Ms Moaba Tendani is registered sole owner and director of the applicant.

11. The sole purpose of the applicant was to offer quality and affordable higher education. Ms Moaba Tendani in her capacity as director underwent the due process of being accredited as a skills training centre offering Engineering and Business courses. The applicant, currently has an enrolment of over one thousand students.[3]

12. During the March 2024 examination period, the respondents through their officials registered the said students and allowed them to write their first trimester examinations. There were government officials present in the form of examination monitors that were deployed to the college and monitored the March examination at the new premises of the college.

13. During June 2024 the applicant did attempt to register the Engineering students for the third trimester. On the 2nd day of July 2024 the applicant was informed that the college was blocked. The applicant was not aware of any notice informing it not to enrol students. A certain Mr Mzuza whom is now late informed Ms Moaba Tendani to restart the accreditation certificate

from QCTO.[4]

14. On the 4th day of July 2024 Ms Tendani went to the QCTO offices in Pretoria where she was assisted in re-updating all requisite documents for accreditation. She futher went to the first respondent’s offices where she was informed by Mr Ngaka and Mr Nzuza that they undertook to expedite the unblocking process once QCTOP had reissued the accrediation certificate.

15. Ms Tendani completed the required registration after she received the required accreditation letters from QCTO on the 26th of July 2024. Subsequently DHET completed a site inspection on the 6th day of August 2024 at the new premises of the applicant. Merely two hours later Ms Tendani was informed that the registrtion had been declined.[5]

16. The applicant filed a review application under case number 125822-2024 which application is still pending.

17. It is trite that if the interdictory relief sought is interim in effect, form and substance the applicant must establish the following to succeed:

(a) A right prima facie even though open to some doubt;

(b) A well-grounded apprehension of irreparable harm if the interim relief is not granted;

(c) A balance of convenience in their favour; and

(d) The lack of another remedy adequate in the circumstances.

PRIMA FACIE RIGHT

18. Section 22 of the Bill of Rfights provides that:

“Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade occupation or profession may be regulated by law.”

19. All this court has to decide when deciding an application for an interim interdict pending an action, is whether there is satisfactory

prima facie evidence of a right and whether, if the application is refused the applicant would suffer loss. If the prima facie right is open to some doubt, irreparable loss.

20. In my view the applicant established prima facie evidence of a right.

A WELL-GROUNDED APPREHENSION OF IRREPARABLE HARM

21. Mrs Tendani at all material times since being informed that the applicant had been blocked, took prompt and active stepts to ensure that the situation was remedied before the examinations commencing on the 18th of November 2024.

22. The applicant have over one thousand students that are enrolled and expecting to write the examinations. It was stated by Ms Tendani that if the students cannot write, she risk facing an uprising which could lead to violence and destruciton of property.

It will futher tarnish their reputation as a business. They will appear to be a “fly by night college”. Ms Tendani as the director of the business is heavily reliant on the income of the busines for financial well-being.

23. I am persuaded that the applicant will suffer pecuniary loss and have a reasonable anticipation of irreparable damage if the interdict is not gratned. The balance of convenience favour the applicant.

ALTERNATIVE REMEDY

24. Mrs Tendani have through multiple emails and telephone calls including an in person visit to the head office of the respondents,

attempted an resulution of this impasse. She attempted all internal processes. The last communicaiton she received from the resondents was on 21 October 2024.

25. She stated that given the fact that the examination seating commences on a fixed date of the 18th of November 2024, there is no other opportunity that the students will have to write. The pending review application did not deal with the issue of the looming examinaitons set to commence on the 18th of November 2024.

26. It is clear that the grant of an interdict is a discretionary remedy. One of the main factors which the court is enjoined to take into account in deciding whether to exercise its discretion is whether there is any other remedy open to the applicant which can adequately protect her in her rights.

27. Having considered all the facts in this matter I am of the view that the rights of this applicant cannot be protected by any other ordinary remedy.

28. In the result, the draft order marked “X” was made an order of Court on 15 November 2024.

JJ Strijdom

Judge of the High Court

Gauteng Division Pretoria

Appearances:

For the Applicant : Adv. K Mhlanga Instructed by

: Shemaya Vengessa Attorneys For the first Respondent : Adv N Mkhari Instructed by

: State Attorney Pretoria

[1] Caselines: Cout order 100-1

[2] Caselines: AA03-7 para 11

[3] Caselines: 02-8 FA para 1.1

[4] Caselines: 02-24 FA para 6.5.2

[5] Caselines: FA 02-15 para 6.5.6