Yame v Nelson Mandela University and Others (3489/2018) [2019] ZAECPEHC 19 (2 April 2019)

Yame v Nelson Mandela University and Others (3489/2018) [2019] ZAECPEHC 19 (2 April 2019)

The application was dismissed because the notice of motion and founding affidavit were fatally defective, non-compliant with procedural rules, and failed to set out a sustainable cause of action. There was incomplete service on materially interested parties, resulting in non-joinder. The relief sought was unclear and prejudicial to the respondents. Factual disputes existed which could not be resolved in motion proceedings, and the applicant declined referral to trial. The applicant was not entitled to reimbursement of unused bursary funds, as the bursary agreement did not provide such a right. The cumulative deficiencies left the court with no option but to dismiss the application. Costs...

Citation
[2019] ZAECPEHC 19
Parties
Applicant: Yoshihito Mavunga Yame; Respondent: Nelson Mandela University; Respondent: Andrew Phiri; Respondent: Rooney Ncwadi; Respondent: Chantal van Heerden; Respondent: Nolutsha Gayiyaa; Respondent: Shamein Madatt; Respondent: Nomathamsanqa Bulembu; Respondent: Buyiswa Yaya; Respondent: Nelson Mandela University Trust; Respondent: National Financial Aid Scheme (NSFAS); Respondent: Legal Aid South Africa; Respondent: Bankseta; Respondent: Services SETA; Respondent: Department of Higher Education (DHET); Respondent: Department of Justice (DOJ)
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
2 April 2019
Case Number
3489/2018
Procedural Posture
Urgent Application / Final Judgment on Application
Outcome
Application dismissed with costs, including costs reserved by previous order.
Judges
Beyleveld
Legal Topics
Motion Proceedings, Non Joinder, Lis Pendens, Bursary Agreements, Costs Award
Civil Procedure Commercial and Corporate Motion Proceedings Non Joinder Lis Pendens Bursary Agreements Costs Award

Case Brief

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Parties

Yoshihito Mavunga Yame

Applicant

Nelson Mandela University

Respondent

Andrew Phiri

Respondent

Rooney Ncwadi

Respondent

Chantal van Heerden

Respondent

Nolutsha Gayiyaa

Respondent

Shamein Madatt

Respondent

Nomathamsanqa Bulembu

Respondent

Buyiswa Yaya

Respondent

Nelson Mandela University Trust

Respondent

National Financial Aid Scheme (NSFAS)

Respondent

Legal Aid South Africa

Respondent

Bankseta

Respondent

Services SETA

Respondent

Department of Higher Education (DHET)

Respondent

Department of Justice (DOJ)

Respondent

Procedural Posture

Urgent Application / Final Judgment on Application

Legal Issues

  1. 1 Whether the notice of motion and founding affidavit comply with Rule 6(5)(a) and set out a sustainable cause of action.
  2. 2 Whether the application should be dismissed due to non-joinder and lack of service on materially interested parties.
  3. 3 Whether the relief sought can be adjudicated in motion proceedings given factual disputes.

Ratio Decidendi

The application was dismissed because the notice of motion and founding affidavit were fatally defective, non-compliant with procedural rules, and failed to set out a sustainable cause of action. There was incomplete service on materially interested parties, resulting in non-joinder. The relief sought was unclear and prejudicial to the respondents. Factual disputes existed which could not be resolved in motion proceedings, and the applicant declined referral to trial. The applicant was not entitled to reimbursement of unused bursary funds, as the bursary agreement did not provide such a right. The cumulative deficiencies left the court with no option but to dismiss the application. Costs...

Court Disposition

Application dismissed with costs, including costs reserved by previous order.

Orders

  • The application is dismissed with costs, including the costs reserved by order of this court dated 20 November 2018.