Zwelibanzi v University of Transkei

• Jurisdiction: South Africa

Zwelibanzi v University of Transkei
1995 (1) SA 407 (TK)

1995 (1) SA p407

Citation	1995 (1) SA 407 (TK)
Case No	681/93
Court	Transkei General Division
Judge	Beck CJ
Heard	May 12, 1993
Judgment	May 19, 1993

Flynote : Sleutelwoorde E

University — Examinations — Student failing examination after examination mark and year mark insufficient to obtain pass — University having lost F one of student's test papers, resulting in her obtaining lower year mark — Student applying in terms of faculty regulations for oral test after examination results announced — Such application refused without student being given opportunity of being heard — Audi alteram partem principle applicable — Where student's difficulties the consequence of University's G failure to carry out its contractual obligations to student by losing test paper, University cannot aver that it is not to be expected to observe audi principle because it was not made term of contract between University and student — Order granted setting aside University's decision, directing University to consider whether student should be granted oral test and H directing that such relief not to be refused without having afforded student a hearing.

Headnote : Kopnota

The applicant, a third year Economic Sciences student at the respondent University, had failed her Economics III examination. It appeared that she had obtained a year mark of 39% for that subject and her examination I mark of 56% was insufficient, when taken with her year mark, to give a pass mark of 49%. Her final mark was 48%. It appeared further, however, that the University had lost or mislaid one of her test papers during the relevant year (an allegation which had not been shown to be false) with the result that she had been awarded a mark of 0% for that test. Her year mark had been detrimentally affected by such zero mark in that test. The applicant thereupon requested relief in terms of reg C2.4 of the faculty regulations which provided that '(t)hird-year students who have obtained a J mark of 47-48% may be

1995 (1) SA p408

A given a re-evaluation or oral as soon after results are known as possible'. This request was refused. In an application for an order setting aside the decision to refuse the request and for an order directing the University to consider whether or not relief under reg C2.4 should not be afforded to the applicant and that such relief should not be B refused without affording the applicant a hearing, it was contended on her behalf that she had had a legitimate expectation of being afforded a hearing before a decision not to grant her an oral test could properly be taken. For the respondent it was contended that the relationship between the applicant and the respondent was a purely contractual one and that the audi alteram partem principle had no application to such a relationship unless it was an express or implied term of the contract.

Held, that the application of the audi alteram partem rule in the present case should not depend only on whether or not it had been made, expressly or by necessary implication, a term of the contract between the applicant C and the respondent: it was helpful to look at the situation from the standpoint of fairness and reasonableness. (At 411E-E/G and G.)

The dicta in Lunt v University of Cape Town and Another 1989 (2) SA 438 (C) at 448E-449H and in Gemi v Minister of Justice, Transkei 1993 (2) SA 276 (Tk) at 287D-288J approved and applied.

Held, further, that on the facts of the case, where it had been averred that what started all the applicant's difficulties had been the D respondent's failure to carry out its contractual obligations towards the applicant by losing a test paper she had written, and where this averment had not been shown to be false, it hardly lay in the mouth of the respondent to say that it was not to be expected of it to observe the audi alteram partem rule simply because it was not made a term of the contract between them. (At 411G/H-H/I.)

Held, further, that to deny the applicant the possibility of averting E further serious prejudice arising from a situation that might have originated in the fault of the respondent, by withholding from her the right to be heard before the decision of the respondent made that further prejudice a reality, would be unfair and unreasonable. (At 411H/I-I/J.) Application granted.

Case Information

Application for an order setting aside a decision of the respondent F University and for consequential relief. The facts appear from the reasons for judgment.

M R Madlanga for the applicant.

D van Zyl for the respondent.

[The application was granted on 12 May 1993 and the following reasons for G judgment were filed on 19 May 1993.]

Judgment

Beck CJ:

Intimating that written reasons would be given later, I made the following order...