No end in sight in legal battle by accommodation provider near UJ

13 October 2021 - 15:25
The legal battle between a privately owned student accommodation provider and the University of Johannesburg continues. File photo.
The legal battle between a privately owned student accommodation provider and the University of Johannesburg continues. File photo.
Image: Google

The University of Johannesburg (UJ) says it intends to apply for leave to appeal a court decision which ordered it to consider an application for accreditation by a privately owned student accommodation provider of its building.

In a judgment passed last Wednesday, UJ was directed, within 10 days of the court judgment, to consider Gaetal’s application for accreditation of the building known as Nano Living Miller Street in respect of the 2021 academic year and to communicate that decision to Gaetal.

Gaetal spent R60m last year to transform its building to house UJ students who were due to receive National Student Financial Aid Scheme (NSFAS) funding in 2021.

Because of a lack of demand caused by Covid-19, the university took a decision in August last year not to consider any new applications for accreditation of private accommodation in 2021.

Despite the UJ decision, Gaetal took in students for the 2021 academic year, but had problems being paid because the institution is not accredited.

In his judgment, acting judge Greg Fourie said the decision not to consider applications for 2021 adversely affected the rights or legitimate expectations of Gaetal.

Following the judgment, UJ said it was of the view the judge erred in several respects and there was a reasonable prospect an appeal court would come to a different conclusion.  

“The university therefore took the decision to apply for leave to appeal the judgment. UJ has instructed its attorneys to proceed with the filing of the leave to appeal. The applicant (Gaetal) has been made aware of this,” said UJ spokesperson Herman Esterhuizen.

He said the decision taken by UJ not to accredit any new accommodation for the 2021 academic year was taken in the midst of the Covid-19 pandemic, at a time when there was a sharp decline in demand for student accommodation.

“This afforded UJ time, it believed, to strengthen and streamline its policies and procedures to better ensure proper use of state funds. At all times, UJ acted in a bona fide way.”

Esterhuizen said UJ has a concern about the perception created by the judgment that if it accredits Gaetal, this would open the door to access to NSFAS funds in respect of accommodation provided at a point in time when Gaetal held no such accreditation.

“This is wrong. The administrative decision not to accredit Gaetal was in place until set aside by the judgment.

“When set aside, the process is to commence afresh. It does not result in an automatic accreditation, nor can any such accreditation be applied retrospectively.”

The institution said the judge further did not consider that Gaetal had acted contrary to the relevant policy.

“It advertised and housed students without being accredited.  Gaetal was in breach of the very policy it sought to rely on, and on this basis, Gaetal resorted to ‘self-help’.”

UJ said by filing its application this week, this will have the effect of suspending the judgment pending the outcome of the application for leave to appeal.