The Bhisho high court has ordered the University of Fort Hare to accept a student’s corrected mark for an outstanding module and include him on the list of those graduating this month.
Judge Nozuko Mjali ruled on Tuesday that a decision by the university’s senate on April 3, in refusing to condone Mbali Silimela’s late submission of the history module and administrative portfolio for his bachelor of education degree, be reviewed and set aside.
Her ruling comes hot on the heels of judge Belinda Hartle’s judgment on March 28 on the same matter, in which she directed Fort Hare to properly consider the recommendation of Prof Vusumzi Mncube, the dean of the education faculty.
Mncube informed the senate in a submission that the “school experience portfolio” comprised seven components but that Silimela had submitted only four on time which resulted in a final mark of 23%.
To pass, he had to submit “history method videos” and his “admin portfolio” for the practical training he did at school. While the deadline for the submission of the videos was September 2 and the admin portfolio October 13, he submitted both on November 11.
In his papers for the March court case before Hartle, Silimela did not indicate reasons for the late submission.
“The student reported that he had a challenge uploading the video and by the time he submitted it, the system was closed so the marks could not be captured. The faculty requests that the 23%, which was initially captured, be changed to 57%,” Mncube said.
He added the faculty supported the correction of the marks for Silimela because he was a final-year student doing the old bachelor of education qualification that is being phased out.
“According to the records, the student has completed all the requirements for the B Ed programme except for teaching practice which is a compulsory module.” Wrote Mncube: “We plead for the correction of marks. If the correction of marks is sanctioned, the student will graduate and the chances of employment will be enhanced.”
But during a special senate meeting on February 2, to discuss the correction of marks for three students, including Silimela, it was resolved not to support the correction of the marks. Silimela, who was doing his final-year studies last year, represented himself in court during the March hearing.
His [Silimela’s] chances of employment are also limited by this predicament that he finds himself in which is not entirely of his own doing.
— Judge Nozuko Mjali
Meanwhile, in her judgment on Tuesday, Mjali stated that at the heart of Silimela’s challenge is the contention that the senate’s decision is “irrational and unreasonable”.
“They [the university and senate] deny their decision was irrational and unreasonable. A further concern raised by them is that after the March 28 order, there is a growing trend of litigation by students who seek to graduate through the courts despite not having met the requirements.”
She said the reasons given by the senate for its decision “indicate that it seriously misconstrued what it was required to do in terms of the court order of March 28”.
“Rather than considering whether to accept the recommendation of the fourth respondent [Mncube], senate embarked on a review of his decision.”
Mjali said what remained to be considered by the senate was whether Silimela’s altered mark of 57% could be allowed into the system. “Explicit from the papers is that the late of submission of Silimela’s 57% mark was not of his own doing but was due to the lecturer Mr Macanda’s dilatory conduct.”
She said the decision to condone Silimela’s late filing of work was granted on December 8, five days before the closure of the submission of the marks into the system on December 13.
“Macanda only marked Silimela’s work on January 11. This was after a lot of persuasion through a number of emails by Silimela. By then, the entry of marks into the portal had closed and could only be done with the permission of the senate.”
Mjali said had Macanda acted timeously, “there would be no need for the approval of senate for the entry of the altered applicant’s mark into the system”.
She said that Silimela “has not been able to obtain remuneration from his employment due to his inability to prove his qualification”.
“His chances of employment are also limited by this predicament that he finds himself in which is not entirely of his own doing.”
She ruled that the senate’s refusal to accept Mncube’s recommendation that Silimela’s mark be altered from 23% to 57% be set aside.
“The injustice caused by the university and senate’s conduct to Silimela, who went through the relevant structures to obtain condonation, had his work marked and obtained a pass mark, is unimaginable. It deserves this court’s mark of disapproval through a punitive costs order.” She ordered the university to pay costs.
Welcoming the judgment, Silimela told TimesLIVE Premium the university went to great lengths to hire top lawyers at great cost “just to destroy a career of a black child”.
“I am very disappointed ... I believe God will make things happen and open doors for me, but it’s very painful.”
University spokesperson JP Roodt said their lawyers were studying the judgment and would respond in due course.
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