Masisi-Letele v University of Limpopo and Others (4047/2022) [2024] ZALMPPHC 91 (27 September 2024)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, POLOKWANE

CASE NO: 4047/2022

(1) REPORTABLE: YES/NO

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

(3) REVISED.

DATE: 27-9-2024

SIGNATURE:

In the matter between: MASISI-LETELE SIMON APPLICANT And UNIVERSITY OF LIMPOPO FIRST RESPONDENT REGISTRAR FOR THE UNIVERSITY OF LIMPOPO SECOND RESPONDENT THE EXECUTIVE COMMITTEE OF SENATE OF UNIVERSITY OF LIMPOPO THIRD RESPONDENT DEAN OF THE FACULTY OF MANAGEMENT AND LAW, UNIVERSITY OF LIMPOPO FOURTH RESPONDENT MINISTER OF HIGHER EDUCATION AND TRAINING FIFTH RESPONDENT COUNCIL ON HIGHER EDUCATION SIXTH RESPONDENT SOUTH AFRICAN QUALIFICATION AUTHORITY SEVENTH RESPONDENT UNIVERSITIES OF SOUTH AFRICA EIGHTH RESPONDENT SENATE OF THE UNIVERSITY OF LIMPOPO NINETH RESPONDENT

JUDGEMENT

MASHAMBA AJ

INTRODUCTION

[1] The applicant brought an application for review in terms of the Promotion of Administrative Justice Act[1] (hereinafter referred as "PAJA") against the decision made by the Senate of the University of Limpopo (hereinafter referred to as "the ninth respondent or the Senate") in the meeting held on the 12 November 2021.

[2] Pursuant to the meeting of the Senate held on the 12th November 2021, the Senate took a decision not to grant the applicant any of the credits for LLB modules on the basis of his B.Proc modules. The Senate reaffirms that the applicant continues to have the rights to pursue his studies towards LLB qualification in accordance with the legislation, rules and regulations that govern the University.

[3] The applicant's review application seeks the following declaratory orders:

3.1 That the first respondent's decision not to grant the applicant any of the credits for LLB modules on the basis of B.Proc modules be declared unlawful, invalid and be reviewed and set aside.

3.2 That it is declared that the first respondent's General Academic rules have no requirement that 50% of the credits for the programme to be conferred should be enrolled at the University of Limpopo.

3.3 That it is declared that the applicant has satisfied the requirements for the conferral of the Bachelor of Laws degree at the University of Limpopo.

3.4 That any respondent opposing this application be ordered to pay the costs of this application, including the costs of two counsel.

3.5 Further and/or alternative relief.

[4] The review application is opposed by the first, second, third, fourth and nineth respondent respectively.

[5] The first, second, third, fourth and nineth respondents withdrawn their complain against the late filing of the applicant's supplementary affidavit and none compliant with Uniform Rule 53.

[6] The review application was set down for hearing on the 13rd September 2024.

BACKGROUND

[7] In 1993, the applicant registered for the B.uris degree and later changed to B. Proc degree in 1994 at the then University of the North and now the University of Limpopo (hereinafter referred as "the first respondent or the University"). On the 03rd April 1998 the applicant was conferred the B.Proc degree.

[8] The applicant held different positions and gained experience as Trainee Registrar, Labour Relations and Conduct Officer, Senior and Chief Registrar of the High Court, Senior Taxing Master, Director of Content and International Relations in the Private Office of the Chief Justice and Constitutional Court, Chief Information Officer of the Constitutional Court, Pupil Advocate at Johannesburg Society of Advocates (Under the General Council of the Bar of South Africa) and currently employed Legal Advisor to the Gauteng MEC of Economic Development, Agriculture and Environment.

[9] On the 2nd September 2014, Adv Ponelis, who was the Dean of the School of Law, informed the applicant that since 1998 the University required that all candidates who sought to upgrade B.Proc and B.juris degrees to the present LLB degree, pass several additional modules that had not been offered as part of the B.Proc and B.Juris programmes.

[10] On or about February 2019 the applicant approached the University with an application for accreditation or exemption of equivalent modules which the applicant passed during the B.Proc degree. Adv Rapatsa who was assisted by Ms Hlologelo Kgasago, informed the applicant and made him to believe that his B.Proc modules will be accredited and exempted for LLB modules and that the applicant will have to do additional LLB modules in order to satisfy the requirements to be conferred with an LLB degree.

[11] On the 08th March 2019 the applicant was registered as a third year LLB student. The applicant was registered for the following modules: Jurisprudence

A (CJUA041), Tax law, Jurisprudence B (CJUA042), Advance labour law (CLLA041), International Law (CPUA041), Environmental Law (CPUA042)

and Conflict of laws (CPLA042). The applicant paid the tuition fee in the amount of R 26 970.00[2].

[12] On the 18th November 2019 the applicant's application for accreditation or exemption succeeded and the applicant was required to make payment in the amount of R 43 770.00[3]. On the 03 February 2020, the applicant proceeded to make payment in the amount of R47 770,00 as required by the University in order to complete the application for accreditation or exemption of B.Proc modules to LLB modules[4].

[13] The applicant indicated that the exemption of 29 B.Proc degree was successful as appears in the transcript of academic record signed and officially stamped by the Registrar of the University (hereinafter referred as "the second respondent or the Registrar")[5].The applicant was accredited 1 (one) module passed at North West University.

[14] Before the applicant's application for accreditation, the applicant had made an application for Recognition of Prior Learning (RPL) for three modules. In February 2020, the University then initiated a Recognition of Prior Learning process, the applicant was subjected to a full day consisting of a vigorous unrehearsed interview and written examination assessment. On the 19 August 2020, the applicant was informed by Adv Rapatsa, who was the Acting Director of the School of Law, that he has passed the interview for RPL. The applicant was exempted from the following RPL modules, Practical Legal Course A (CPRA041), Practical Legal Course B (CPRA42) and Computer Literacy (SC0S012).

[15] According to the Registrar, he became aware of the applicant's application for accreditation or exemption of more than 50% of B.Proc modules to the LLB modules after the submission of RPL result after the 20th August 2020. The applicant was advised to make another application for exemption with the Senate of the University of Limpopo (hereinafter referred as "the ninth respondent or the Senate"), which he did on the 22July 2021.

[16] On the 23rd July 2021, the Senate in its meeting of the 23 July 2021, the Senate engaged about the applicant's application for exemption and accreditation of B.Proc to LLB programmes. The Senate directed that the Executive Committee of the Senate of the University of Limpopo (hereinafter referred as the third respondent or the ECS") should deal thoroughly with the matter and make a recommendation on how the matter should be resolved.

[17] On the 30th September 2021, the ECS held a special meeting where they engaged about the applicant's issue and made the following observations:

(a) The applicant was applying for exemption of 29 LLB programme modules in recognition of credits accumulated from the same number of modules from his B.Proc degree.

(b) In the 23 years since the applicant had graduated, the LLB that replaced B.Proc had gone through numerous programme reviews and changes leading to incompatibility of the modules in the two programme. This renders the direct transfer of credits impossible

(c) The requirement that 50% of the credits for the programme to be conferred should be enrolled for is part of the University General Academic Rules and relevant legislative policy framework, was re-emphasised. The relevant Rule is aimed at ensuring that the integrity and credibility of the new programme is protected. LLB is a new credit that constitute the foundation of the new programme. Credits from other programmea are meant to compliment what is otherwise an already solid foundation for the programme to be conferred. Any other deviation threatens the continued accreditation and credibility of the new programme and qualification.

[18] The ECS after consideration of the above observations, made the following recommendations to the Senate;

(a) The applicant should not be granted any of the credits for LLB modules on the basis of his B.Proc modules, and

(b) Reaffirms that the applicant continues to have the right to pursue his studies towards LLB qualification in accordance with the legislation, rules and regulations that govern the University programme and qualification.

[19] On or about 12th November 2021, the Senate endorsed the ECS recommendations and decided that the applicant should not be granted any of the LLB

modules on the basis of his B.Proc modules and that the applicant has a right to pursue his studies towards LLB qualification in accordance with legislation, rules and regulations that govern the University programmes and qualification.

APPLICANT SUBMISSIONS

[20] In his answering affidavit the Registrar stated that it is not the University's case that it could never have been appropriate to give credit in an LLB course for modules done under B.Proc degree. Rather, the University's position is that it was wrong to do so after such a long delay; and to do so in excess of 50 % rule[6].

[21] The applicant further submitted that the Senate had legal opinion which advised them that the Senate is entitled to grant more than 50% of the qualification credits towards another qualification. The Senate was advised to consider various factors in deciding what credits it is prepared to grant[7].

[22] Advocate Rapatsa warned the Senate of not accrediting the applicant any of his B.Proc modules when he stated that:

"Of course as a matter of fact when this matter appeared before the Honourable Judge Kganyago, the merits of it were not necessarily

dealt with, because it was enrolled on an urgent basis, so the matter was removed from the roll, based on technicalities.

"But as a matter of fact, the documentation that I am talking about, remains part of the records of the court. In other words, the road that I see ECS (Executive Council of the Senate) is saying we should take is now deviating or it is completely different from the submissions which were being made when we were interacting with the attorneys and the attorneys from the opposing side.

And I want to bring to attention of senators that represent a risk, then because then should it be that the candidate prefers to litigate again, then we would be accused of removing the goalposts and rightly so, because central to our argument at that time as yes, we may give you credit, but we cannot go beyond 5 precent".

[23] The applicant further submitted that Advocate Rapatsa gave the Senate solution which would not expose them to risk of the University materially contradicting itself and thereby making an irrational decision to not credit the applicant any of the courses, by stating that:

"...perhaps the best approach would be that we should not be retrospective, rather let us be prospective. If we think that there is a problem with a case before us, in attempting to deal with it, let us not go retrospectively.

Because if you go retrospectively, then it means that you must go and call everyone else who went through the program and benefitted through the very credit process and that will prove very fatal to both the university and candidates.

Would not want the situation where this chap is going to litigate again and refer to those cases that graduated here and specifically indicating how they benefitted through credit processes. In my view, I would have settled for sticking with the 50 percent and now generate a new view which says prospectively, from now on, we are no longer giving credits which were obtained in either B.Proc or a.Juris or any other qualification, for that matter. Because then if you are to take that position, it is not a position that must only affect law, it has to affect all qualification in the university. "

[24] The Senate did not take the advices which was given by Adv Rapatsa when he indicated that the answering affidavit which was before this court in an urgent application, contradicts with the current view or consideration when deciding the applicant's matter.

[25] The applicant indicated that Adv Rapatsa submissions to the Senate is a prove that the allegation that one student by the name of Musa Baloyi has graduated in the same situation as this of the applicant is true. The Registrar in his answering affidavit, paragraph 209, answered in a way that he did not know of the RPL application which the applicant was referring to but the application was in his possession.

[26] In the General Faculty Rule of the school of law, in paragraph 2.2 states that a candidate for degree, diploma and certificate in a School in the Faculty must comply with the conditions and meet the selective criteria as determined by the concerned school[8] The school of law are responsible for creating and implementing their own rules.

[27] The applicant argued that Rule G8.1.2.2 as provided in the General Academic Rules of the University of Limpopo reads:

He/She has successfully passed approved modules/courses at the University as follows as follows;

(a) For any bachelor's degree for which the prescribed period is four years or more at least the final two academic years and; and

(b) For any other bachelor's degree; at/east two academic years, provided that he/she has been successful in at least half the total number of credits prescribed for the application, including the credits for the final year of the major subjects, where such majors are required.

(NOTE: If a qualification does not comprise major subjects, such subjects are regarded as major subjects as are designated for the purposes of this Rule under Rules of the Faculty concerned).

[28] The applicant indicated that the 2018 General Rules as referred by the respfondents counsel was not present during 2019 or he was not made aware of 50% rule or any policy.

FIRST, SECOND, THIRD, FOURTH AND NINETH RESPONDENTS' SUBMISSIONS

[29] The respondents submitted that the application for exemption was made to the Senate on the 22 July 2021. The ECS is made up of senior functionaries (many of whom are senior professors), executive deans of the four faculties and department heads. It held a special meeting on the 30 September 2021, at which it considered the applicant's application for exemption of B.Proc modules. It decided, unanimously to recommend to the Senate that it should not grant the applicant any credits for LLB degree based on modules completed during his B.Proc studies. Its reasons were recorded as appears in paragraph 17 supra.

[30] The Senate which comprises of 88 members and most are senior academic of the University, who have knowledge of courses curriculum and quality assurance of qualifications as a tertiary level. The Senate held a meeting on the 12th November 2021 and considered the applicant's application for accreditation and the third respondent's recommendation. The respondents referred the court to General Academic Rule which was approved by Council on the 20 April 2018 and this rule specifically at subrule 8.1.2.2 which has established 50% rule.

[31] The respondents' submitted that court can not review the Senate's decision but any decision they have made can be remitted back to the Senate for reconsideration.

[32] The respondent further submitted that the Senate cannot perpetuate the wrong doing or errors. The respondents referred the court to the case of Kuzwayo v Representative of Executor in the Estate of Late Masilela, [2011] 2 All SA 599 (SCA), that the court can not consider the error to be reviewed, because clerical error can be corrected.

[33] The academic transcript which the applicant used to proof accreditation was retrieved after the Senate took a decision to refuse the applicant's application for exemption of B.Proc modules.

[34] The respondents submitted that the Council of Higher Education's (CHE) 2016 Credit Accumulation and Transfer (CAT) policy takes the Higher Education Qualification Sub­ Framework (HEQSF). In paragraph 5.2.1 of the policy requires that the institutions develop and implement institutional CAT policies. But paragraph 5.2.5 of the CHE's 2016 CAT policy stipulate the following:

"The recognition of credits for the purposes of transfer from one qualification to another is determined by the nature of the

qualifications, the relationship between them, the nature, complexity, and extent of the curricula associated with the specific

subjects to be recognized for exemption and/or inclusion, and the nature of the assessment used....at A maximum of 50% of the credits

of a completed qualification may be transferred to another qualification".

[35] The respondents further submitted that, if the University wishes to deviate from CHE's 2016 CAT policy, needs to request approval of the High Education Quality Council. The respondents are of the view that they have no discretion to accredit B.Proc modules with the LLB Modules of over 50% and that they can only do so after the approval and compliance with High Education Qualification Sub-Framework and CAT Policy 2016.

THE LEGAL FRAMEWORK AND COURT'S FINDINGS

[36] In terms of The Constitution of the Republic of South Africa[9] (hereinafter referred as "the Constitution"), section 2, provides that this constitution is the supreme law of the republic;

law or conduct inconsistent with it is invalid, and obligation imposed by it must be fulfilled. The Constitution further in section

33(1), confers everyone right to administrative action that is lawful, reasonable and procedural fair.

[37] In terms of section 6(2) (e)(v) of PAJA, a court or tribunal has the power to judiciary review an administrative action if the action was taken in bad faith. Section 6(2(e)(i) further provides that a court or tribunal has the power to judicially review an administrative action if the action itself contravenes the law. The court finds that the action or conduct by the University contravenes the law in different ways, the University did not consider the impact of their unfair administrative action to the applicant. The Senate, ECS and the Registrar, in their consideration, they valued the integrity of the University and of LLB degree beyond the integrity of the applicant and his qualifications. The Constitution stipulates that everyone is equal before the law and has rights to equal protection and benefit of the law. The Senate did not consider the applicant's constitutional rights when taking their unfair administrative decision.

[38] The University's reasons for his administrative decision were that in terms of the University General Rules and other relevant legislative policies, the application for accreditation of more than 50 % should not be granted and the requirement that in order to be conferred with a new programme it is the requirement to enroll 50% of the credits for the programme. This Court find that the policy and criteria for Credit Accumulation and Transfer within the National Qualifications Framework, as amended, 2021, as a relevant legislative policy framework dealing with transfer of credits. In this case the University did not have a rule, or internal policy stipulating the maximum percentage of the credits that will be recognised and transferred towards a qualification.

THE HIGHER EDUCATION QUALIFICATIONS SUB-FRAMEWORK- 2013

[39] In terms of paragraph "33. In terms of Section 13 (h) (ii) of the National Qualification Framework Act[10], South African Qualification Authority is responsible for developing policy and criteria, after consultation with the Quality Councils,

for credit accumulation and transfer. In the interim, a maximum of 50% of the credits of a completed qualification may be transferred to another qualification, provided also that no more than 50% of the credits required for the other qualification are credits that have been used for a completed qualification. The purpose of this provision is to avoid the awarding of multiple qualifications for the same work undertaken and to ensure that qualifications with different purposes are not embedded within each other. As exceptions, and subject to limits, credits for a completed qualification may be recognised by the same or another institution as meeting part of the requirements for another qualification."

UNIVERSITY OF LIMPOPO STATUTE AND RULES

[40] The institutional Statutes of the University was published in the Government Gazette in accordance with the Higher Educational Act on the 10th March 2017. It provides that the Council of the University, in consultation with Senate, determines admission, registration and graduation requirements for all degree, diplomas and certificates. The University adopted its General Rules under the Institutional Statutes of the University. The relevance is in rules 8.1 and 8.2, in part G8 of the rules;

[41] Rule "8.1 Recognition of modules from other institution;

8.1.1 Senate may recognise and grant a student exemption from class attendance, as well as formative and summative assessment in a module by virtue of a credit obtained from another university or accredited institution of higher learning.

8.1.2 Subject to the stipulation under Rule G8.1.1, Senate may, as far as permissible, accept academic transcripts and certificate attesting to conduct issued by such university and grant credit such modules for degree purposes; provided further that such a candidate shall not be admitted to a qualification by the University unless:

8.1.2.1 His/her total period of attendance at such a recognised university or other approved institution and at the University of Limpopo, together equals at least the full period prescribed by the university for the qualification. Such attendance will only be accepted in respect of recognised modules of the University, or equivalent modules approved for the purpose by Senate.

8.1.2.2 He/she has successfully passed at least half the total number of credits prescribed for the qualification.

[42] Rule 8.2 Recognition of modules after obtaining degrees or deploma;

"8.2.1 in the case of a student of the University or another university, Senate may recognise periods of attendance and assessment procedures in a module in one programme for admission to studies in another programme; provided that the candidate shall have complied with the conditions laid down under Rule G8,1,2,2, and in the case of a graduate of another university, also those under Rule G8.1.2.1

8.2.2 In the case of a graduate of this University or another university, Senate may accept periods of attendance as well as assessment in a core module for a second bachelor's degree; provided that the candidate has complied with all the conditions laid down under Rule G8.1.2.2, and in the case of a graduate of another university or institution approved for the purpose by Senate, also those under Rule G8.1.2.1".

RECOGNITION OF PRIOR LEARNING, CREDIT ACCUMULATION AND TRANSFER POLICY 2016

[43] In terms of Paragraph "2.1. The purpose of the policies outlined in this document is to provide guidelines for the higher education sector with regard to the development of institutional RPL, CAT and Assessment policies in the context of the national policies developed by South African Qualification Authority and within the framework of the High Education Qualification Sub­ Framework.

5.2. Application of CAT The following policy statements seek to guide the application of the CAT within higher education.

5.2.1. Institutions are required to develop and implement institutional CAT policies in order to ensure equity and inclusiveness; and to actively promote access to learning opportunities. Institutional CAT policies should be premised on overcoming possible barriers of access and promoting success.

5.2.2. The development of institutional CAT policies should be based on the principles of access for success, retention, articulation by design, comparison based on credible methods and transparency.

5.2.6 A maximum of 50% of the credits of a completed qualification may be transferred to another qualification. This policy prescript seeks to protect the integrity of qualifications by ensuring that the exception does not become the norm."

CREDIT ACCUMULATION AND TRANSFER POLICY(CAT)- 2021

[44] In terms of Paragraph 15. Principles for CAT Policy, requires that Comparison should base on credible methods;

"In promoting Credit Accumulation and Transfer, qualifications are compared based on credible methods that determine the extent to which their curricular properties, as well as their content and outcomes match, as guided by the National Qualification Framework level descriptors".

[45] Paragraph 15, further gives obligatory duty to the institution that has adopted the Policy to be transparent all time, it states that;

"Rules, regulations and any register of precedents which inform, influence or govern decisions taken in respect to CAT are valid, fair, reliable and transparent. They must be publicly available and drawn to the attention of intending students prior to enrolment. This should include clear information about fees for CAT where they are charged."

[46] The Constitutional Court in Democratic Alliance v President of South Africa and Others[11], in dealing with the concept of irrationality and ignoring relevant factors, held that:

"The Supreme Court of Appeal held that the President, by not taking into account the findings of Ginwala Commission, ignored a relevant factor. This formulation takes us to the question of whether the seminal statement in Johannesburg Stock Exchange74 concerning administrative action in the pre-constitutional era is at all relevant to the rationality evaluation:

Broadly, in order to establish review grounds it must be shown that the president failed to apply his mind to the relevant issues in accordance with the 'behest of the statute and tenets of natural justice' ( see National Transport Commission and Another v Chetty's Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) 735 F-G; Johannesburg Local Road Transportation Board and Others v Davit Morton Transport (Pty) Ltd 1976 (1) SA 887 (A) at 895B-C; Theron en Andere v Ring van Wellington van die NG Sendigkerk in Suid Afrika en Andere 1976 (2) SA 1 (A) at 14F-G. Such failure may be shown by proof, inter alia, that the decision was arrived at arbitrarily or capriciously or mala fide or as a result of unwarranted adherence to a fixed principle or in order to further ulterior or improper purpose; or that the president misconceived the nature of discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones; or that the decision of the president was so grossly unreasonable as to warrant the inference that he had failed to apply his mind to the matter in the manner aforesaid,"

[47] If the Senate should have applied their mind, considered all relevant factors, statutes and applicable policies would have realised that such numerous programme changes have been tailored to include Recognition of Prior Learning to bridge the gap between the B.Proc and LLB modules. The Senate did not use any method as required by the CAT policies, to measure the similarities between the B.Proc and LLB modules. The Senate concentrated on the period or age of the B.Proc modules and as a results their administrative decision was irrational, arbitrary and capricious. The Senate administrative decision contravenes the law and reviewable.

[48] The submission that the decision of the Senate is not reviewable is not correct, when one considers the case law referred in paragraph 46, supra, section 2 of the Constitution, which is the supreme law of the republic, law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. In terms of section 33 (1) of the Constitution, confers everyone with the right to administrative action that is lawful, reasonable and procedurally fair. The conduct of the Senate is inconsistence with the constitution, the administrative action they took is unlawful, and unreasonable.

LEGITIMATE EXPECTATION

[49] In the case of Minister of Environmental Affairs and Tourism v Phambili Fischeries, the Supreme Court of Appeal[12] outline the conditions for a legitimate expectation: the representation must be clear, unambiguous, and without relevant qualification; the expectation must be reasonable; the decision maker must have induced the representation; and the representation must be within the decision makers's competence and legality, without which reliance cannot be considered legitimately.

(a) The representation must be clear and unambiguous

[50] The representation in this case was made in the form or promise or established practice. The applicant communicated via a letter with the Dean of the Faculty of Law Adv Ponelis in September 2014 to be particular, Adv Rapatsa who was assisted by Ms Hlologelo Kgasago, the applicant was informed and made to believe that his B.Proc modules will be accredited and exempted for LLB modules and that the applicant will have to do additional LLB modules in order to satisfied the requirement to be conferred with an LLB degree. The applicant engaged with the Officials of the school of law and

(b) The Expectation must have been induced by decision maker

[51] The University is clearly a decision maker and one who induced the expectation for the following reasons; The applicant's application was directed to the University and the letter dated 7 August was written by the University. The Applicant's application for RPL and exemption of B.Proc modules were directed to the University and the exemption of B.Proc modules were granted by the University. In the circumstances the expectation that the LLB degree will be conferred to the applicant upon completion of modules registered in 2019 for LLB degree was induced by the University who is a decision maker.

(c) The representation must be competent and lawful for decision maker to make

[52] The representation was done in terms of the lawful procedures of the University under Rule G8 of the University's General Rules which provides for recognition and exemption of modules or courses.

(d) Expectation must be reasonable

[53] The expectation was reasonable because the application for exemption was made to the University through the School of Law Officials, who directed the applicant the form he should complete for exemption of equivalent modules completed under B.Proc. The process of RPL was clear the process for completion of LLB degree as advised in February 2019. On the 7th August 2021, the Acting Director, Adv Rapatsa directed a letter to Prof OS Sibanda (Executive Dean of Faculty of Law) confirming that the applicant was successful in his RPL interview.

[54] In the matter of Makwela v University of Limpopo and Another[13], the Honourable Phathudi J reviewed and set aside the University's decision not to recognise the applicant's courses or modules on the basis of inter alia legistimate expectation. In this matter, the Registrar sought to withdraw a written approval for recognition of modules. This case is not different from the current set of facts. The court would like to emphasise that the Senate impugned decision is reviewable, the University has created the applicant legitimate expectation.

[55] The University granted approval for 29 B.Proc modules and later took a decision not to credit a single B.Proc modules. The University indicated that a person who took a decision to credit 29 B.Proc modules was not authorised by the Senate. When an applicant approach the University did not request any officials to confirm if they had any authority or not but believed them as they were working in their capacity as the employees of the University.

[56] The Senate considered wrong factors to reach their conclusion not to credit any B.Proc module. The evidence by Adv Rapatsa was precise when he alluded that such type of accreditation was done to many students who were in the same position with that of the applicant and many graduated. The Respondents answers were far fetching and clearly untenable by stating that they have no discretion to accredit or exempt modules more than 50%. The way the Senate is not familiar with the CAT policies and how it should be adopted, its clear that the University did not adopt CAT policy. The applicant was taken through the most difficult processes because the Senate do not know the procedure to be followed when dealing with 50% rule in terms of CAT Policy. The court finds that in 2019 the University had not adopted CAT Policy and 50% rule was not applicable to the Applicant.

[57] The court noted that in 2019, the applicant made an application for registration of LLB degree and he was registered. The applicant further made a substantive application for accreditation or exemption of B.Proc modules for the purpose of completing his registered LLB degree. The applicant through the advises from the officials within the Faculty of Management and Law and Adv Rapatsa, who was an acting director of school of law in 2019, made further application for Recognition of Prior Learning (RPL). The applicant was expressly advised of the exemptions that will be granted in terms of the General Rules G8. The applicant was further advised of additional modules he should register according to the applicable LLB curriculum and syllabus of 2019 in order to be conferred with an LLB degree. He was advised to register seven modules which he passed all of them in 2019.

[58] The Court further considered that School of Law identified 29 modules from B.Proc which should be accredited. The applicant was further exempted for one LLB module passed from North West University. The process of RPL was done in February 2020 and the applicant had a full day interview to ascertain his experience to determine if he can be exempted for three (3) modules, namely; Computer Literacy, Practice Legal Training A, and Practice Legal Training B. After six months from the date of the RPL interview, the acting director of school of law informed him that he was successful in the interview, therefore, three RPL modules mentioned above were

also accredited. The applicant had a legitimate expectation to be conferred with an LLB degree, as he was advised by the University

through the officials within the Faculty of Law.

[59] The court finds that During the time the applicant made a re-application for exemption, the dispute was whether he can be accredited or exempted for more than 50% of B.Proc modules to LLB modules. The ECS and Senate, instead of only attending to make such ruling in the issue before them, they decided to re-consider whether the modules of B.Proc are compatible with those of the LLB modules and such was already done in the School of law. The applicant was treated differently with other students who were also in possession of B.Proc modules, who were accredited and exempted without going through this processes. The court is of the view that the applicant was treated unequal with other students.

[60] The court finds that the Senate was wrong in their the view that due to 2016 CAT policy, they have no discretion to accredit or exempt B.Proc modules to LLB Modules. I would like to indicate that the Senate was ignorant to the fact that the CAT policy work as a guideline and is not enforceable unless is adopted by the University. The CAT policy put an obligation that when the policy is adopted the applicant should be made aware if 50% rule is applicable. The applicant was not made aware of the 50% rules during the time he made his application for exemption of B.Proc modules to LLB modules because such policy or rule was not implemented in 2019.

[61] The court considered the transcribed records of the Senate during their meeting in September and November 2021, and the submissions made by Adv Rapatsa who advised the Senate about the practice of the school of law, when it comes to accreditation of B.Proc modules. Adv Rapatsa who was an acting director of school of law, confirms that many other students who were in the similar situation with the applicant were conferred with an LLB degree. The Court is of the view that the version given by the applicant in his founding affidavit and supplementary affidavit is true, that B.Proc modules were accredited or exempted and that it is not true that the University need approval from Higher Education Council or any other institution in order to exempt more than 50% modules. The Senate was wrong and misdirected itself when they concluded that in order to exempt the applicant B.Proc modules they need an approval from other institutions such as Quality Council, and South African Qualification Authority, therefore, the Senate took an impugned decision as a result of an error of law.

[62] The Court further considered the proof of registration which indicates that the applicant was regarded as a third year LLB student in 2019. The transcript of academic records further reflects the exempted modules which also confirm the version of the applicant that he is exempted for 29 B.Proc modules by the school of law.

[63] The Legal Opinion by Adv Rapatsa further submitted to the Senate on the 12 November 2021, that the 50% rule cannot be applied retrospectively

to the applicant and this is an indication that the version of the applicant is true that such rule was not implemented in 2019.This

further support the version of the applicant that certain student by the name of Musa Baloyi, graduated in the same situation as the one of the applicant. This court reject the submission of the respondents that the officials from school of law had no authority to exempt over 50% of the applicant's B.Proc modules to the LLB degree modules. In the case of Wightman t/a JW Construction v Headfour (Pty) Ltd and Another[14].

"An applicant who seeks final relief on motion must in the event of conflict, accept the version set up by his opponent unless the latter's allegations are, in the opinion of the court, not such as to raise a real, genuine or dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers".

[64] The Senate did not deal with who took a decision to credit the applicant and why he was registered as third year LLB student and this is because the Senate was also aware that such is a practice in each school to create their own criteria of rules in their respective faculties[15]. This court find the conduct of the Senate very unreasonable and arbitrary and it should not be condoned during the 1996 constitutional dispensation.

[65] The court is of the view that if the 50% rule was applicable in 2019, it would mean that the applicant was not made aware of such rule. The applicant is not in control of how the University should operate and if the governance of the University failed such failure cannot be attributed to the applicant.

[66] The Senate undermined the applicant's B.Proc modules to the extent of deciding that the applicant should restart the LLB degree from the first year. The Senate's decision of not accrediting or exempting any of the applicant's B. Proc to LLB modules to LLB modules was unreasonable and such decision should be declared invalid and be set aside.

[67] The University created a legitimate expectation to the applicant when they advised that the B.Proc modules can be credited and that they accepted the amount of R 43 770.00 as a fee for accreditation of modules. I would like to emphasise that such fee was never refunded to the applicant until this matter was heard and such is a prove that the university accepted such payment because they accredited the applicant's B.Proc modules to LLB Modules as applied at the faculty of law.

[68] The respondents' submission that the person who exempted the applicant had no authority is not correct, the school of law work under the wing of the university and they have authority. The decision made by the School of Law, it is the decision of the University. The University did not dispute the authenticity of proof of registration, payment of 43770.00 for exemption of 30 B.Proc modules and the transcript that indicates that the applicant indeed were exempted for 29 B.Proc modules and 1 modules from University of

North West. There is nothing the University produce to prove that the authority of the school of law officials and the acting director of the school of law were acting ultra vires, the applicant is not responsible for any administrative decision in the Faculty of Management and Law.

COST

[69] This matter is complex and the applicant has to use his scarce resources to reach a point where the matter is heard and finalised before this court. The court is persuaded to grant cost in a higher scale, including the cost of two Counsels.

ORDER

[70] In the circumstances I make the following orders;

1. The University of Limpopo's decision not to grant the applicant any of the credits for LLB modules on the basis of B.Proc (Baccalaureus Procrurationis) modules be declared unlawful, invalid and be reviewed and set aside.

2. That it is declared that the applicant has satisfied the requirements for the conferral of the Bachelor of Laws degree at the University of Limpopo.

3. The University of Limpopo must comply with order number 2, within three (3) months or in the next graduation ceremony of the Faculty of Management and Law.

4. That the first, second, fourth and ninth respondents, are ordered to pay costs in an attorney and client scale, including fees of two Counsel scale C.

E MASHAMBA

ACTING JUDGE OF THE HIGH COURT,

POLOKWANE, LIMPOPO DIVISION

APPEARANCES FOR THE APPLICANT: WR. MOKHARE SC E MASOMBUKA INSTRUCTED BY: KGOMO ATTORNEYS INC EMAIL: obakeng@kgomoattorneys.co.za reception@tshikovhiattorneys.co.za FOR THE RESPONDENTS: AJ FREUND SC JD WITHAAR INSTRUCTED BY: ANTON BAKKER INC EMAIL: anton@bakkerlaw.co.za; magdeline@bakkerlaw.co.za DATE OF HEARING: 13 September 2024 DATE OF JUDGEMENT: 27th September 2024

[1] 3 of 2000

[2] Bundle A1, page 52

[3] Bundle A1, page 98

[4] Bundle A1, page 99-101

[5] Bundle A1, page 54-56

[6] Bundle D1, page 97

[7] Bundle D6, page 687

[8] Bundle D3, pag 374

[9] Act 108 of 1996

[10] Act 67 of 2008

[11] 2013 (l) SA 248 CC at para 38

[12] (2003) 2 All SA 616 (SCA)

[13] (4384/2017) [2018] ZALMPPHC 2

[14] [2008] ZASCA 6; 2008 (3) SA 371 (SCA) at para 12

[15] lpid 8