Potwana v University of KwaZulu-Natal

• Jurisdiction: South Africa
• Judge: MR Chetty AJ
• Judgment Date: 24 January 2014
• Docket Number: 5347/2012
• Court: KwaZulu-Natal High Court, Durban
• Hearing Date: 04 November 2013
• Citation: 2014 JDR 0156 (KZD)

Chetty, AJ

1.

This is an application for the review and setting aside of a decision taken by the Senate of the respondent on 2 November 2011 to withdraw the applicant's PhD degree, which had been conferred on her on 14 April 2005. In the alternative, the applicant contends that the Senate's decision on 2 November 2011, in terms of which her degree was withdrawn, be declared of no force and effect.

2.

At the heart of this matter is the vexed question of whether an academic institution, once it confers a degree upon a student, may at any time thereafter decide to revoke such degree on "good cause", and on the basis that such conferment is a certification to the world at large of the recipient's educational achievement and fulfilment of the institution's standards. Waliga v Board of Trustees of Kent State University, 488 N.E.2nd 850, 852 (Ohio 1986). Against this standard, as the applicant has contended, is whether a university can be bound to the conferral

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of a degree upon a student? This gives rise to a further conundrum of whether an academic institution, if it is to assume the role of gatekeeper over an ex-student's future conduct, moral or otherwise, could choose in what instances to exercise its powers, and after how long once a student has left its gates.

3.

The act of revocation was preceded by a turbulent history, involving the applicant, the supervisor of her doctoral thesis, Professor Msweli-Mbanga and the respondent, which spanned several years and involved litigation before the criminal courts. An appreciation of the background facts leading to the eventual decision to revoke the applicant's degree is therefore pivotal to a proper determination of the issues.

4.

In February 2002 the applicant registered as a doctoral student with the respondent and was allocated Professor Msweli-Mbanga as her supervisor and academic mentor. Although the respondent admits to this fact, it states elsewhere in its opposing papers that the applicant "in her application form requested Msweli-Mbanga as her supervisor". There is no evidence to support this averment other than to cast suspicion over the applicant from the time that she registered for the degree. In any event, I am of the view that nothing material turns on this dispute. At the time of enrolment for the degree, the applicant had already attained a Master's in Business Administration from the respondent and was employed at a large state owned petroleum enterprise, which sponsored both the completion of the applicant's MBA and her PhD. During the course of her degree, the applicant was assisted by Mrs Lancaster, who was employed as a faculty officer and reported directly to Msweli-Mbanga, who was the Dean of the Faculty of Management Studies.

5.

In anticipation of the completion of her doctoral thesis and the prospect of graduating in 2005, the applicant informed Lancaster that her thesis would be ready

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for submission in early 2005. She was advised that should she wish to graduate in April 2005, she would be required to submit three bound copies of her thesis for examination by 15 February 2005. Prior to the submission of her thesis, the applicant presented an academic paper at a conference in Paris during September 2004. An examiner who eventually was appointed as part of the panel to review the applicant's thesis, Dr D Remenyi of Trinity College in Dublin, met the applicant at the conference, where she was accompanied by Msweli-Mbanga. Although the respondent attempted to make much of this meeting, Dr Remenyi in his interview with forensic auditors appointed by the respondent to investigate the circumstances under which the degree was conferred, expressed no adverse comments in relation to the meeting with the applicant. He did not consider the meeting to be improper.

6.

The applicant complied with the requirements for submission of her thesis, as conveyed by Ms Lancaster. The thesis was entitled 'Integrating Participation with Organisational Citizenship Behaviour in State Owned Enterprises: A Framework for Reducing Resistance to Change' and submitted as fulfilment of the requirement for the degree of Doctor of Philosophy in the Faculty of Management Studies.

7.

Ms Lancaster then began corresponding with the examiners appointed to review the thesis submitted by the applicant. According to the documents which formed part of the record, Ms Lancaster wrote to Professor van Esch, the Assistant Dean at the Sobey Business School, Saint Mary's University, Halifax, Canada on 22 February 2005 to enquire whether she would be prepared to accept an appointment as an external examiner in respect of the thesis submitted by the applicant. A similar request was directed to Professor Mahadea of the School of Business at the respondent's Pietermaritzburg campus. The requirement for the panel of examiners is that it comprises of two external examiners and an internal appointee. Although

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Lancaster states in her affidavit that she was unable to recall contacting a third examiner, the record reflects a letter dated 7 March 2005 to Professor Remenyi to serve as an examiner. The examiners were also provided with a document to guide examiners of higher degrees; the supervisor's report; an examiner's questionnaire and a claim form. I should point out that Professor van Esch kindly asked that her honorarium be donated to a local AIDS orphanage. All of the examiners were asked to complete the review of the applicant's thesis by 30 March 2005 "in order to allow a successful candidate the opportunity to graduate in April 2005".

8.

By end March 2005 all of the examiners filed their reports as well as their examination questionnaires. Professor Van Esch responded that in her conclusion a number of revisions were required by the applicant. She provided a detailed commentary on the thesis and recommended that the degree be granted, subject to the corrections being addressed. Professor Remenyi, in his response to the question whether he recommended the award of the degree to the applicant, stated "Not Yet". However, he also did not recommend that the thesis be rejected outright. He too made several comments on the work of the applicant and suggested that she be given a "suitable period to make the required changes". The third examiner, Dr Mahadea, was of the opinion that the thesis should be rejected outright stating that it was "not ready yet in [its] present form". He found fault with the applicant's research methodology and sample size, that her chapters concluded without the arguments being crystallised and in essence her work did 'not match up to doctorate level'.

9.

The reports of the examiners were then forwarded to the applicant who immediately attended to address the concerns of the examiners and submitted a consolidated response to her supervisor, Msweli-Mbanga on 11 April 2005. The respondent appears to attach much weight to the fact that the applicant submitted

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her revisions and corrections to her thesis within 10 days of receiving the examiners comments, despite the examiners suggesting that she may require more time to do so. The respondent refers to the applicant having "ostensibly corrected her dissertation", with the inference being that she either did not address the queries raised by the examiners, alternatively that as a result of her colluding with Msweli-Mbanga, the latter simply placed her name on the graduation list despite the paucity of her revision. These conclusions are unsustained by any evidence or opinion ventured by an expert, suitably placed to critique the revision submitted by the applicant. It is important to note that the remarks set out below by Professor Coldwell in his belated report express no misgivings about the content of the revised dissertation. It is only Professor Roodt, who was later appointed to further assess the applicant's revised dissertation, who suggested that the applicant had failed to deal adequately with the examiner's comments.

10.

On the same day that Msweli-Mbanga received the applicant's revised dissertation, she wrote to Lancaster indicating that the applicant had addressed the comments or concerns raised by the examiners and asked that the document (the applicant's response to the examiners) be forwarded to Coldwell, together with the examiner's reports. Msweli-Mbanga added significantly in her email to Lancaster that "Dave has agreed to write the co-ordinator's report" suggesting that she had already discussed the matter with him and that he was in agreement that her degree be conferred on her at the forthcoming graduation. This conclusion is borne out from the statement by Msweli-Mbanga that she had already written a eulogy for the applicant and asked Lancaster to bring this, together with eulogies for other students, to the graduation.

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11.

The respondent's stance in the matter is that the applicant had not complied with its academic standards and therefore should not have been entitled to the degree being conferred on her. What however transpired is that prior to the compilation of a report by the academic co-ordinator, Coldwell, Msweli-Mbanga instructed Lancaster to place the applicant's name on the graduation roll for 14 April 2005. In as much as the respondent attributes blame to Msweli-Mbanga for placing the applicant on the graduation roll when she had not complied with the university's academic standards, it bears noting what Lancaster in says of the process in an affidavit, dated 22 March 2007, forming part of the record :

"During this period we were moving office from Howard College to Westville and we encountered problems with missing boxes and documents. The report as required was not requested and completed by Dave Coldwell (Prof Coldwell). He subsequently went on sabbatical leave in...