Mathipa v Vista University and Others

• Jurisdiction: South Africa
• Judge: De Villiers J
• Judgment Date: 21 September 1999
• Docket Number: 13610/97
• Court: Transvaal Provincial Division
• Counsel: S J Maritz SC for the applicant. I A M Semenya SC (with him I V Maleka) for the respondents.

De Villiers J:

This is an application for review. Prayers 1 and 2 of the notice of motion read as follows:

'1.

That the selection of the third respondent as campus director of the Mamelodi campus of the first respondent by a selection J

De Villiers J

committee under the chairmanship of the second respondent on 3 A October 1996 be reviewed and set aside.

2.

That the appointment of the third respondent by the first respondent as campus director of the Mamelodi campus of the first respondent be reviewed and set aside.'

Applicant is an associate professor in the faculty of education at the B Mamelodi campus of the first respondent.

The applicant, third respondent and 75 other applicants applied to the first respondent for appointment as campus director of its Mamelodi campus.

On 3 October 1996 the third respondent was selected as C campus director of the Mamelodi campus by a selection committee under the chairmanship of the second respondent. Second respondent is the rector and vice-chancellor of the first respondent.

Before the first and second respondents filed a supplementary affidavit, there was no indication in the papers as to when or by whom D the third respondent had been appointed to the post of Mamelodi campus director. In para 28.17 at p 158 of the papers the second respondent merely said: 'The selection committee's decision to appoint the third respondent was accepted by the management of the university.'

The appointment of third respondent as Mamelodi campus director E was announced on 5 November 1996.

The council of the first respondent sat on 21 February 1997. In para 3 at p 6 of its minutes the following was noted:

'Prof H P Africa, the vice-chancellor, reported that campus directors had been appointed at all campuses, except the Bloemfontein campus.

Dr Rangaka has been appointed at the Soweto campus, Dr Mboya at the F Mamelodi campus and Prof Ntembu at the Welkom campus.'

The last line of para 3 reads as follows: 'Noted.'

In contradistinction thereto in para 4 at p 6 - 14 of the minutes several appointments were confirmed by the council.

It is evident that the council took no decision on 21 February G 1997 in regard of the appointment of the Mamelodi campus director and that the council merely took cognisance of what had been reported to it by the second respondent.

In para 31 at p 159 the second respondent refers to the council's minute and states: 'The council thereby accepted the decision to appoint the third respondent.'

The word 'noted' does not bear this meaning. The Concise H Oxford English Dictionary defines the verb 'note', inter alia as 'observe, notice, give or draw attention to'.

It is further evident that on 21 February 1997 the council was not informed of the facts and circumstances relating to the appointment I of the Mamelodi campus director. It is clear that the council could not possibly have applied its mind to such an appointment.

Mr Semenya, who appeared with Mr Maleka for the respondents, in my view, quite correctly conceded that the council took no decision in regard to the appointment of the third respondent as Mamelodi campus director. J

De Villiers J

Section 15(2) of the Vista University Act 106 of 1981 provides as A follows:

'The power to appoint any person as a member of the teaching, administrative, clerical or other staff of the university, or to promote, transfer, second or discharge any such member, shall be vested in the council.'

In s 1 of the Act 'campus director' is defined as 'a person B appointed under s 15(2) to represent the rector on and to control a campus'.

Section 10(7) of the Act provides:

'The council may appoint committees of the council consisting of members of the council or of members of the council as well as other persons, and may assign any of its powers or functions to any such committee: Provided that the council shall not be divested of any power C or function which it has assigned to any such committee, and any decision of any such committee may be altered or set aside by the council at...