HUNGWE v BINDURA UNIVERSITY OF
SCIENCE EDUCATION & ANOR

HIGH COURT, HARARE

[Urgent Chamber Application HH 626-16]

September 27 and October 5, 2016

ZHOU J

Administrative law – Administrative justice – Right to administrative justice under section 68 of the Constitution of Zimbabwe, 2013 – Audi alteram partem principle.

The applicant applied to the first respondent for a degree programme. In his application, he stated that he held an “E” Grade for ordinary level Mathematics. The respondents offered him a place. He paid his fees and attended lectures. Upon undergoing the formal registration process, he was advised he could not be registered as he did not hold a pass for ordinary level Mathematics. The respondents withdrew the applicant’s place. The applicant challenged the respondent’s decision.

Held, that the attempt to cancel the applicant’s offer of admission without affording the applicant the opportunity to make representations contravened s 68 (1) and (2) of the Constitution of Zimbabwe, 2013 and s 3 (1) of the Administrative Justice Act [Chapter 10:28] in that the decision was not reasonable and both substantively and procedurally fair, thus a contravention of the audi alteram partem rule.

Cases cited:

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC), referred to

Mabuto v Women’s University in Africa & Ors 2015 (2) ZLR 355 (H), applied

Legislation considered:

Administrative Justice Act [Chapter 10:28], s 3 (1)

Constitution of Zimbabwe, 2013, s 68 (1), (2)

Book cited:

Currie I and De Waal J (eds) The Bill of Rights Handbook (5th edn, Juta & Co Ltd, Cape Town, 2005) pp 676-677

AT Tavenhave, for the applicant

T Moyo, for the respondents

ZHOU J:

This case deals with a matter that has previously been dealt with by this Court in a case that is clearly on point if not on all fours with the instant matter. The issue is whether a university or any other institution of learning for that matter, which has admitted a person to a programme of study for which the person does not have the minimum qualifications stated in the advertisement of the degree concerned can unilaterally withdraw the admission of the student. In the case of Mabuto v Women’s University in Africa & Ors 2015 (2) ZLR 355 (H), this Court held that such a withdrawal of the student’s place would be unlawful. Notwithstanding the fact that reference was made to the above case and reliance was placed upon it by the applicant in oral argument, the respondents’ counsel refrained from addressing me on why a different conclusion must be reached in this case. The omission was decidedly structured.

The applicant in casu responded to an advertisement for the Master of Science Education Degree (Geography) which the first respondent was offering on a block release basis. He holds a Bachelor of Education Degree in Geography from the Midlands State University as well as a Diploma in Education from the University of Zimbabwe which he obtained following a course of study at Hillside Teachers’ College, an associate college of that University. The advertisement published by the first respondent stipulated, among other requirements, that “All candidates who apply for degree programmes should have the specified ‘A’ level subjects and at least five ‘O’ level subjects including English Language and Mathematics”. The applicant has not passed “O” level Mathematics, as he has a Grade “E”. He, however, submitted his application. In the application form which he completed the applicant stated his “O” level results accurately, including the Grade “E” in Mathematics. The application form was accompanied by photocopies of his academic and degree certificates. The “O” level certificate reflects his results. Notwithstanding the above facts, the first respondent by letter dated 16 August 2016 offered the applicant a place to study for the Master of Science Education Degree (Geography). The letter gave the applicant a student registration number and advised him that a place had been reserved for him in the degree programme. He was required to pay the fees in full into the first respondent’s bank account the details of which are clearly provided in the offer letter. The fees were to be paid before the commencement of the semester.

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