The Bhisho high court has dismissed the University of Fort Hare’s application for leave to appeal to the Supreme Court of Appeal a judgment that forced the institution to accept a student’s corrected mark for an outstanding module.
On May 9, judge Nozuko Mjali ruled that the university should include Mbali Silimela’s name on the list of those who were due to graduate on May 18. This was after she set aside a decision by the university’s Senate on April 3, which refused to condone Silimela’s late submission of the history module and administrative portfolio for his bachelor of education degree.
Despite the ruling, he did not graduate because the university lodged an application for leave to appeal judge Mjali’s judgment and order.
Delivering her ruling on Fort Hare’s application for leave to appeal her judgment on Friday, Mjali said the university had argued for the application to be heard by the Supreme Court of Appeal and not by a full bench of the high court in Bhisho.
“Their counsel argued that this is one of the matters that deal with interference to the institutions of higher learning and the decision that is finally taken in this matter will affect not only Fort Hare but all other institutions in enforcing their rules and regulations.”
The notice of application for leave to appeal listed 16 grounds for appeal, on which the judgment was challenged.
Judge Mjali said the university sought leave to appeal “broadly on the basis that I erred on facts and in law”, adding: “The argument made is that I erred in certain factual findings as well as my application of the law to the facts. The nub of the challenge is that I erred in making the orders.”
Before Mjali’s first judgment on May 9, another Bhisho high court judge, Belinda Hartle, in a ruling on the same matter on March 28, 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 Silimela’s “school experience portfolio” comprised seven components but that he 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.
“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 that 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 [Bachelor of Education] programme except for teaching practice, which is a compulsory module.”
One cannot be faulted to think that the application for leave to appeal was simply filed to frustrate Mr Silimela’s efforts of getting the qualification he deserves.
— Judge Nozuko Mjali
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.”
Meanwhile, Mjali stated in last Friday’s judgment that she carefully considered the university’s submissions but was “not persuaded” that there was a reasonable possibility that another court would come to a different conclusion.
“To grant leave to appeal in an unmeritorious matter clogs the roll and thus prevents access to justice. It also comes at a cost to Mr Silimela, both financial and emotional, due to the delaying in the completion of the matter.”
Stated Mjali: “It would also be tantamount to flogging a dead horse, a wastage of time and judicial resources, as well as prolonging the agony for Mr Silimela. That is exactly what our courts should frown upon.”
The judge, who granted a punitive costs order against Fort Hare, said when the application for leave to appeal was filed, the court and Silimela immediately indicated their availability to hear the matter, but the university’s legal representatives were not available on two occasions.
“Bearing all this in mind, one cannot be faulted to say that the application for leave to appeal was simply filed to frustrate Mr Silimela’s efforts of getting the qualification he deserves.”
Though he welcomed the ruling, Silimela said he was very disappointed that he was not allowed to graduate on May 18.
Before the graduation, he bought a suit and pair of shoes for R2,500 in the hope he would graduate.
“But I couldn't wear it and shine like others. All I want now is my degree certificate because I am planning to enrol for an honours qualification at another university.”
Fort Hare spokesperson JP Roodt did not respond to media queries at the time of publication.
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