1

IN THE KWAZULU-NATAL HIGH COURT, DURBAN

REPUBLIC OF SOUTH AFRICA

CASE NO: 5347/2012

In the matter between:

DR NOBUBELE POTWANA Applicant

and

THE UNIVERSITY OF KWAZULU-NATAL Respondent

___________________________________________________________________

JUDGMENT

___________________________________________________________________

CHETTY, AJ

1. This is an application for the review and setting aside of a decision taken by

the Senate of the respondent on 2 November 2011 to withdraw the applicant’s PhD

degree, which had been conferred on her on 14 April 2005. In the alternative, the

applicant contends that the Senate’s decision on 2 November 2011, in terms of

which her degree was withdrawn, be declared of no force and effect.

2. At the heart of this matter is the vexed question of whether an academic

institution, once it confers a degree upon a student, may at any time thereafter

decide to revoke such degree on “good cause”, and on the basis that such

conferment is a certification to the world at large of the recipient’s educational

achievement and fulfilment of the institution’s standards. Waliga v Board of Trustees

of Kent State University, 488 N.E.2nd 850, 852 (Ohio 1986). Against this standard,

as the applicant has contended, is whether a university can be bound to the conferral

2

of a degree upon a student? This gives rise to a further conundrum of whether an

academic institution, if it is to assume the role of gatekeeper over an ex-student’s

future conduct, moral or otherwise, could choose in what instances to exercise its

powers, and after how long once a student has left its gates.

3. The act of revocation was preceded by a turbulent history, involving the

applicant, the supervisor of her doctoral thesis, Professor Msweli-Mbanga and the

respondent, which spanned several years and involved litigation before the criminal

courts. An appreciation of the background facts leading to the eventual decision to

revoke the applicant’s degree is therefore pivotal to a proper determination of the

issues.

4. In February 2002 the applicant registered as a doctoral student with the

respondent and was allocated Professor Msweli-Mbanga as her supervisor and

academic mentor. Although the respondent admits to this fact, it states elsewhere in

its opposing papers that the applicant “in her application form requested Msweli-

Mbanga as her supervisor”. There is no evidence to support this averment other

than to cast suspicion over the applicant from the time that she registered for the

degree. In any event, I am of the view that nothing material turns on this dispute. At

the time of enrolment for the degree, the applicant had already attained a Master’s in

Business Administration from the respondent and was employed at a large state

owned petroleum enterprise, which sponsored both the completion of the applicant’s

MBA and her PhD. During the course of her degree, the applicant was assisted by

Mrs Lancaster, who was employed as a faculty officer and reported directly to

Msweli-Mbanga, who was the Dean of the Faculty of Management Studies.

5. In anticipation of the completion of her doctoral thesis and the prospect of

graduating in 2005, the applicant informed Lancaster that her thesis would be ready

3

for submission in early 2005. She was advised that should she wish to graduate in

April 2005, she would be required to submit three bound copies of her thesis for

examination by 15 February 2005. Prior to the submission of her thesis, the

applicant presented an academic paper at a conference in Paris during September

2004. An examiner who eventually was appointed as part of the panel to review the

applicant’s thesis, Dr D Remenyi of Trinity College in Dublin, met the applicant at the

conference, where she was accompanied by Msweli-Mbanga. Although the

respondent attempted to make much of this meeting, Dr Remenyi in his interview

with forensic auditors appointed by the respondent to investigate the circumstances

under which the degree was conferred, expressed no adverse comments in relation

to the meeting with the applicant. He did not consider the meeting to be improper.

6. The applicant complied with the requirements for submission of her thesis, as

conveyed by Ms Lancaster. The thesis was entitled ‘Integrating Participation with

Organisational Citizenship Behaviour in State Owned Enterprises: A Framework for

Reducing Resistance to Change’ and submitted as fulfilment of the requirement for

the degree of Doctor of Philosophy in the Faculty of Management Studies.

7. Ms Lancaster then began corresponding with the examiners appointed to

review the thesis submitted by the applicant. According to the documents which

formed part of the record, Ms Lancaster wrote to Professor van Esch, the Assistant

Dean at the Sobey Business School, Saint Mary’s University, Halifax, Canada on 22

February 2005 to enquire whether she would be prepared to accept an appointment

as an external examiner in respect of the thesis submitted by the applicant. A similar

request was directed to Professor Mahadea of the School of Business at the

respondent’s Pietermaritzburg campus. The requirement for the panel of examiners

is that it comprises of two external examiners and an internal appointee. Although

4

Lancaster states in her affidavit that she was unable to recall contacting a third

examiner, the record reflects a letter dated 7 March 2005 to Professor Remenyi to

serve as an examiner. The examiners were also provided with a document to guide

examiners of higher degrees; the supervisor’s report; an examiner’s questionnaire

and a claim form. I should point out that Professor van Esch kindly asked that her

honorarium be donated to a local AIDS orphanage. All of the examiners were asked

to complete the review of the applicant’s thesis by 30 March 2005 “in order to allow a

successful candidate the opportunity to graduate in April 2005”.

8. By end March 2005 all of the examiners filed their reports as well as their

examination questionnaires. Professor Van Esch responded that in her conclusion a

number of revisions were required by the applicant. She provided a detailed

commentary on the thesis and recommended that the degree be granted, subject to

the corrections being addressed. Professor Remenyi, in his response to the

question whether he recommended the award of the degree to the applicant, stated

“Not Yet”. However, he also did not recommend that the thesis be rejected outright.

He too made several comments on the work of the applicant and suggested that she

be given a “suitable period to make the required changes”. The third examiner, Dr

Mahadea, was of the opinion that the thesis should be rejected outright stating that it

was “not ready yet in [its] present form”. He found fault with the applicant’s research

methodology and sample size, that her chapters concluded without the arguments

being crystallised and in essence her work did ‘not match up to doctorate level’.

9. The reports of the examiners were then forwarded to the applicant who

immediately attended to address the concerns of the examiners and submitted a

consolidated response to her supervisor, Msweli-Mbanga on 11 April 2005. The

respondent appears to attach much weight to the fact that the applicant submitted

5

her revisions and corrections to her thesis within 10 days of receiving the examiners

comments, despite the examiners suggesting that she may require more time to do

so. The respondent refers to the applicant having “ostensibly corrected her

dissertation”, with the inference being that she either did not address the queries

raised by the examiners, alternatively that as a result of her colluding with Msweli-

Mbanga, the latter simply placed her name on the graduation list despite the paucity

of her revision. These conclusions are unsustained by any evidence or opinion

ventured by an expert, suitably placed to critique the revision submitted by the

applicant. It is important to note that the remarks set out below by Professor

Coldwell in his belated report express no misgivings about the content of the revised

dissertation. It is only Professor Roodt, who was later appointed to further assess

the applicant’s revised dissertation, who suggested that the applicant had failed to

deal adequately with the examiner’s comments.

10. On the same day that Msweli-Mbanga received the applicant’s revised

dissertation, she wrote to Lancaster indicating that the applicant had addressed the

comments or concerns raised by the examiners and asked that the document (the

applicant’s response to the examiners) be forwarded to Coldwell, together with the

examiner’s reports. Msweli-Mbanga added significantly in her email to Lancaster

that “Dave has agreed to write the co-ordinator’s report” suggesting that she had

already discussed the matter with him and that he was in agreement that her degree

be conferred on her at the forthcoming graduation. This conclusion is borne out

from the statement by Msweli-Mbanga that she had already written a eulogy for the

applicant and asked Lancaster to bring this, together with eulogies for other

students, to the graduation.

6

11. The respondent’s stance in the matter is that the applicant had not complied

with its academic standards and therefore should not have been entitled to the

degree being conferred on her. What however transpired is that prior to the

compilation of a report by the academic co-ordinator, Coldwell, Msweli-Mbanga

instructed Lancaster to place the applicant’s name on the graduation roll for 14 April

2005. In as much as the respondent attributes blame to Msweli-Mbanga for placing

the applicant on the graduation roll when she had not complied with the university’s

academic standards, it bears noting what Lancaster in says of the process in an

affidavit, dated 22 March 2007, forming part of the record :

“During this period we were moving office from Howard College to Westville and

we encountered problems with missing boxes and documents. The report as required

was not requested and completed by Dave Coldwell (Prof Coldwell). He subsequently

went on sabbatical leave in August 2005. During the period he was on sabbatical

leave, I attempted to have the coordinators report completed by another professor in

Dave Coldwell's absence, but without success.

Upon the return of Prof Coldwell to office in August 2006, I requested he

complete the said coordinators report. I sent him a request in writing, dated 29 August

2006 and attached the relevant documentation referred to in the said request. The

request is attached hereto marked ML7. Prof Coldwell did ask whether this was

procedurally correct, and I told him that under the circumstances, the student has

already graduated, I was requested to complete the administrative process as required

and close of the file.

Upon receipt of the coordinator's report dated 1 August, the matter was

deemed finalised. Personally, I had no authority to award the Ph.D. degree to

Potwana, nor place her on the graduation roll.”

12. Lancaster’s statement with regard to the referral of the applicant’s revised

thesis should also been seen in light of the report filed by Coldwell more than a year

7

later from the date when he should have done so. It is apparent that due to an

administrative fault, he either simply forgot to prepare the co-ordinator’s report in his

capacity as Head of the School of Management at the Faculty of Management

Studies, or that he ignored the instruction to do so. The respondent goes further in

its opposing papers by stating that “Coldwell only authorised the awarding of the

degree to the applicant in writing on 31 August 2006”, inferring somehow that the

final decision as to whether the applicant could graduate rested with him. The

respondent places much emphasis on the absence of Coldwell’s report, noting that

at the time when the degree had been awarded to the applicant, Coldwell had not

completed his report. It contends that the report ought to have been “received prior

to any decision to permit the applicant to graduate. The co-ordinator’s report is

necessary to ensure that all comments of the examiners have been attended to and

that the student is in fact ready to graduate”. In an attempt to exploit the failure or

neglect of its own employee in not preparing a report within the time periods

stipulated, the respondent lays the blame for the applicant graduating squarely at the

feet of Msweli-Mbanga, insinuating that the conferral of her degree could only have

come about as a result of a corrupt relationship between the applicant and her

supervisor. I will deal with this aspect more fully when dealing with a payment made

on the applicant’s behalf to her supervisor for the interpretation of certain statistics.

13. What is relevant for the moment is that the respondent submits that “Msweli-

Mbanga had made a decision that the applicant be placed on the graduation role

notwithstanding that the co-ordinator’s report certifying that the changes had been

made, had yet to be delivered.” The respondent further suggests that by the time the

applicant’s name was placed on the graduation list, Coldwell had not considered the

examiner’s report, the changes or revisions proposed by the applicant nor did he

8

certify that she was ready to graduate. In so doing, in my view, the respondent

elevates Coldwell’s decision making status by stating that “there had not been

approval by Coldwell that the applicant should graduate”. These contentions in my

view are entirely opportunistic and seek to maximise an error or neglect of duty on

the part of its own staff to the detriment and prejudice of the applicant. To suggest

that Coldwell had the final word on whether the applicant should have graduated is

entirely erroneous.

14. There is nothing on the papers before me from which I can deduce what

authority vests in the position of a co-ordinator. Lancaster, as the faculty officer and

the liaison between the applicant and the departmental staff, says nothing in her

affidavit of Coldwell’s authority or whether the absence of his report was an

impediment to the applicant graduating. On reviewing Coldwell’s report (which was

eventually written on 31 August 2006) he expresses no opinion on the content of the

applicant’s thesis. His report is simply a deductive analysis of what is contained in

the questionnaires of the various examiners. Put differently, his analysis is confined

to whether all three examiners were ad idem in relation to certain questions posed in

the questionnaire or the numerical extent of their divergence. This is evident from

his report, where he states the following :

“The two external examiners indicate that corrections and revisions should be

subjected to the satisfaction of the supervisor, while the internal examiner indicates

that both these aspects and the extensions should be subject to: the supervisor,

HOS, internal examiner and external Examiner. The balance of evidence indicates

that while both external reports are generally favourable and support the award of

the degree (subject to divisions and corrections in one case), and regard the thesis as

having made a contribution to the field, the internal examiner is more critical and

requires more substantive remedial action.

9

The two examiners feel the thesis needs corrections and revisions only indicate that

they should be carried out subject to the satisfaction of the supervisor alone.

The divisions and corrections which had been sent to me have been evaluated and

deemed satisfactory by the supervisor.

On reading reports of the three examiners I concur with the general overall

assessments of the external international examiners more than the internal

examiner and believe that since the revisions and corrections have met the

satisfaction of the supervisor, the degree should be conferred on the candidate.

(my underlining).

15. The report of Coldwell is unequivocal that if the applicant had carried out the

revisions as suggested by Professor Van Esch and Remenyi to the satisfaction of

Msweli-Mbanga alone, this was sufficient for the applicant to have been placed on

the graduation list. Nowhere in his report does Coldwell express any misgivings that

the applicant should not have graduated when she did, or that his report was of such

importance that its absence precluded her from graduating. More importantly in the

context of the respondent contending that the applicant had not met the requisite

academic standards of the university, Coldwell is in agreement that the decision of

the majority of the examiner’s must prevail – that the decision of the two external

examiner’s that the applicant, provided she attended to the corrections suggested by

them, was a suitable candidate to graduate with her PhD. Even if one doubted

Coldwell’s statement that whether the corrections and revisions were suitably

attended was a matter for assessment by the supervisor (Msweli-Mbanga) alone, his

view is fortified by what Professor Remenyi says in his interview with the forensic

investigator in response to a question whether he (Remenyi) had been supplied with

a copy of the amendments, made by the student; the supervisors report and the

amended final thesis. In his response, Remenyi responds to all three queries “No, I

10

have not”. He adds crucially, “I feel that I should point out to you that it is not usual

for the external examiner to receive these documents”. In short, the respondent’s

argument that the applicant should not have been allowed to graduate, based on the

absence of the report by Coldwell, is both unconvincing and unsustainable. It would

seem that on this score, the respondent has indeed been hoisted by its own petard.

16. Following the conferring of her PhD, the applicant responded to an

advertisement at the beginning of 2006 for a vacancy for a senior lecturer in the

Faculty of Management Studies. According to the applicant, a requirement for the

position was a PhD. She was offered the position, which she still occupies at the

respondent university, albeit her absence following her suspension from duties while

facing a criminal charge for corruption related to a payment made to Msweli-Mbanga,

which is dealt with below. The respondent denies that the post which the applicant

was appointed to requires a PhD, but provides no evidence to refute this allegation.

A copy of the advertisement would have settled this dispute definitively. What the

respondent does provide is evidence that the applicant’s former employer was

unhappy at her resignation, especially after it had sponsored her studies for the

degree, which is the subject matter of this application. Again, these are peripheral

matters which the respondent has introduced, in my view, simply to portray the

applicant in a poor light.

17. I now turn to deal with the sequence of events leading to the applicant being

criminally charged, along with Msweli-Mbanga, for having engaged in fraud and

corruption. Central to this was a disclosure by a Mr Pillay, at doctoral student whose

supervisor was Msweli-Mbanga. Pillay was also the respondent’s Chief Financial

Officer. On 26 June 2006 Pillay disclosed to the Vice Chancellor of the respondent

that he had been engaged an intimate relationship with Msweli-Mbanga, which had

11

turned sour. Following the breakdown of the relationship, his supervisor had turned

violent and threatening towards him. Apart from the ethical problems of the student-

supervisor relationship and the adverse effect that such an event could have for the

reputation of the university, it also emerged that Pillay had paid his supervisor an

amount of R80 000. In addition, a group of academics at the university expressed

their concern in an anonymous email to the Vice-Chancellor that Pillay had been

allowed to graduate as a result of his supervisor overruling an external examiner,

and in circumstances where the external examiner had indicated that the student

should not be granted the degree. As a result of these allegations, a committee was

appointed (the ‘Bawa Committee’) to look into the matter and eventually

recommended disciplinary action be taken against Msweli-Mbanga and for the

degree awarded to Pillay to be revoked. Subsequent to this, a tribunal chaired by

retired Justice Magid was established to probe the allegations of payment by Pillay

to Msweli-Mbanga. The tribunal found that Msweli-Mbanga had acted improperly in

overruling the recommendation of an external examiner, and recommended in

relation to Pillay, that his degree be revoked. According to the respondent’s

opposing affidavit, the decision of Senate to revoke Pillay’s degree was confirmed on

16 January 2007. I should point out that there is nothing on the papers or any

argument before me, which suggests that the Magid Tribunal was of the view that

the Senate or indeed the respondent may have had the power, of its own accord, to

revoke the degree conferred on Pillay.

18. Following of the Magid Tribunal, the respondent resolved to conduct a

forensic probe into payments made by students to Msweli-Mbanga during the period

of employment with the university. At around the same time, Msweli-Mbanga’s

estranged husband contacted the Vice-Chancellor of the respondent and informed

12

him that his wife had awarded degrees to students in exchange for payment, one

such student being the applicant. The Vice-Chancellor then contacted the applicant

regarding the allegation. In a letter dated 29 January 2007 the applicant confirmed

that in the course of preparation of her dissertation, she required assistance with the

“inputting and preparation of data”. She was aware that Msweli-Mbanga owned a

research consultancy practice and approached her to allocate two research

assistants for this purpose, as this work was time consuming. According to the

applicant’s letter, the information was sent back to her “for interpretation and report

writing”. Msweli-Mbanga submitted an invoice to the applicant’s employer for the

amount of R16 150, which the company paid directly to Msweli-Mbanga. The

applicant also disclosed to the Vice-Chancellor that in accordance with Xhosa

tradition, after her graduation in April 2005, in October 2005 a thanks giving

ceremony was held at her family home in Mount Frere, Eastern Cape. Msweli-

Mbanga was one of two guests of honour at the ceremony, the other being a bishop.

In accordance with tradition, the guests of honour, including Msweli-Mbanga, were

given a sheep each by the applicant. The applicant was subsequently requested by

forensic investigators to depose to an affidavit setting out the above facts, which she

refused. Her letter to the Vice-Chancellor above however, is not disputed.

19. The respondent’s opposing affidavit further records that the forensic

investigation also dealt with the response of the three examiners appointed to review

the dissertation of the applicant. The investigators conducted interviews with the

examiners as part of their probe, putting to Professors Van Esch and Remenyi

whether they would have participated in the review of the applicant’s thesis had they

known of the payment to Msweli-Mbanga for the statistical assistance given to the

applicant. Both examiners indicated that they would not have wanted anything to do

13

with the matter had they known of this fact. Similarly, the Vice-Chancellor regarded

the payment to Msweli-Mbanga as undermining the trust and integrity of the degree

conferred by the respondent, with the potential to adversely affect the way in which

the university is viewed by the public. Mr Kemp, who appeared with Mr Crotts for

the applicant, submitted that this response was hardly surprising as the investigators

were probing the activities of Msweli- Mbanga and the applicant with a view to laying

criminal charges of corruption against both. The point stressed by counsel for the

applicant is that the respondent’s case is that it acted to revoke the degree conferred

on the applicant not for grounds of misconduct, but on the grounds that she had

failed to “satisfy the necessary requirements to obtain a PhD degree and it was

therefore obliged to withdraw the degree and owed the world at large a duty to do

so”.

20. The report compiled by the forensic investigators formed the basis of criminal

charges eventually brought against the applicant and Msweli-Mbanga. At the same

time, the respondents initiated various internal processes, including a resolution by

its sub-committee on Higher Degrees on 13 March 2009 that a recommendation be

made to Senate that the applicant’s PhD thesis be submitted to a fourth examiner to

verify whether the applicant had complied with the requirements of her examiners;

that she should be afforded an opportunity to rectify the shortcomings, and in the

event of her refusing to do so, that her degree be withdrawn. The applicant in her

supplementary affidavit points out that whilst the sub-committee on Higher Degrees

had made the above recommendation, the minutes of their meeting record that the

“identified irregularities were more to do with the process and procedures of the

examination rather than the conduct of the student” and that “technically” the

14

applicant had not done anything wrong as there was no suggestion of plagiarism

from any of the examiners.

21. What is significant is that the respondent took no steps to act on the

recommendation of the sub-committee for a while. This however changed shortly

after 7 August 2009 when the applicant was acquitted of all charges against her. A

few days later on 14 August 2009, the meeting of the Academic Affairs Board was

held and agreed to recommend to Senate that a fourth examiner be appointed to

address whether the concerns raised in the examiner’s reports had been

satisfactorily addressed. If the examiner found that the applicant had indeed

complied with the examiner’s concerns, her degree conferred on 14 April 2005 would

remain intact. If it were found that she had not complied, she would be given an

opportunity to rectify the shortcomings.

22. On 2 September 2009 the above recommendations were considered and

approved by Senate. The applicant was apprised of the process and at that stage

she expressed no opposition. The respondent then proceeded to appoint a

Professor Roodt of the University of Johannesburg as the fourth examiner. He

reported on 5 May 2010 to the respondent that the applicant had not carried out

many of the recommendations of the examiners, or had only partially implemented

their recommendations in her revised thesis. He recommended that if she complied

with his recommended corrections, she should be entitled to keep her degree. His

recommendations would have entailed that significant parts of the thesis would have

to be re-written. A member of the academic faculty, Professor Govender, was

appointed as the applicant’s new supervisor for the purpose of complying with

Roodt’s recommendations.

15

23. The applicant expressed concern about the process followed in the

appointment of the fourth examiner and questioned the motive behind his

appointment. She then sought legal advice whereupon a letter was addressed to the

respondent in which her attorneys intimated that the respondent was attempting

through alternate means, to resuscitate the allegations on which the applicant had

been criminally charged and acquitted. The respondent was accused of acting

maliciously and was called upon to desist from subjecting the applicant to

harassment and intimidation. Her newly appointed supervisor chose not to respond

to her attorneys and drew to her attention that the deadline for the completion of her

revisions was 31 May 2011, failing which the Senate’s recommendation towards

revocation of her degree would be implemented. Prior to the deadline imposed for

the applicant to address the concerns expressed by Professor Roodt, the applicant’s

then attorney’s wrote to the respondent on 30 May 2011 pointing out that once the

respondent had decided to confer the degree on the applicant, it was in fact functus

officio and lacked the capacity to withdraw the degree, and even then, the power to

revoke or withdraw a degree could only be resorted to in exceptional circumstances,

none of which were present in the applicant’s case. The applicant’s attorney

pertinently drew to the respondent’s attention that should its internal rules and laws

have been changed to alter the common law position (that it was functus officio), that

the respondent provide the attorney with all relevant rules and legislation relied upon,

which enabled it to revisit its original decision to confer the degree on the applicant

and to withdraw the degree. Without indicating the legal basis for its decision to

revisit the conferral of the applicant’s degree, the respondent’s Director of Legal

Services simply side-stepped the issue and indicated that the respondent was

proceeding to ascertain whether the applicant had complied with the

16

recommendations of the fourth examiner. By way of letter on 30 November 2011 the

applicant was informed by the registrar that as she had failed to attend to the

required recommendations of the Senate appointed external examiner, at a meeting

on 2 November 2011, it was decided that her PhD be withdrawn. That decision, the

respondent clarified was final and not subject to a right of appeal. The respondent

also clarified that the withdrawal of the applicant’s degree would not affect her

employment as a senior lecturer at the university, a position she currently holds

despite the revocation. It is noteworthy that although the respondent had not set out

the legal basis for its withdrawing the degree, in an email dated 27 March 2012, it

confirmed that the degree was revoked because she “failed to attend to all the

required recommendations of the Senate appointed examiner”. It is against this

decision that the present review lies.

Issues to be decided

24. As is evident from what is set out above, the applicant’s attorneys, even prior

to the Senate taking the decision to revoke her degree, requested of the respondent

the legislative authority for its intended actions. It is only when the respondent filed

its answering affidavit that the applicant became aware for the first time that the

powers relied on at the time where not expressly contained in any statute. The

Statute of the University of KZN (‘the institutional statute’) was later amended in

2012 to cater for the respondent to take decisions related to the withdrawal of

degrees conferred by the university. The first issue to be determined is whether the

respondent had the power, in the absence of any express legislative provision, to

withdraw the applicant’s degree, without an application to Court. That enquiry

focuses on the common law position. The second enquiry is whether the provisions

17

of the Higher Education Act No. 101 of 1977 (‘the HEA’) can be interpreted in a

manner so as to confer authority on the respondent to withdraw degrees in the

absence of an express authority to do so. Allied to this enquiry, is the applicant’s

argument that even if the respondent had the authority to revoke a degree conferred

on a student, that the entity to exercise such powers is the council of the university

and not the senate. The subsidiary issues which arise are whether the respondent

was entitled to appoint a fourth examiner and whether the applicant was under any

duty to comply with his and/or the Senate’s dictates that she amend her thesis to his

satisfaction. The further issue is whether the respondent was functus officio once it

granted the degree and consequently had no authority to revisit its decision or

whether had a public law duty to investigate the matter and to withdraw the degree.

Common law basis for revocation

25. Counsel for the applicant submitted that whilst the respondent has the

express power to confer a degree upon a student who has satisfied the academic

requirements for a particular qualification or field of study, only in very limited

circumstances, can a university take steps to revoke the degree. If the respondent

were to act in accordance with this framework, it could proceed to withdraw a degree

but only after such action was sanctioned by a Court. In order to satisfy the onus in

such an application, the respondent can only proceed on one of two grounds:

a. Material error – where for example two lists had been compiled

following the marking of examination scripts, and inadvertently those

students who had failed the examination were placed on the graduation

list instead of those who had passed.

18

b. The second species is where there has been fraud or dishonesty on

the part of the student. This would typically include a scenario where

the student engaged in an act of misconduct or dishonesty prior to his

or her graduation, such as plagiarism, but that such facts were either

not disclosed or were unknown at the time to the university.

The above two grounds for revocation of a degree would seem to accord with the

institutional practice at some universities in the United Kingdom, like Kings College

or the University of London, where the common law position finds expression as part

of the university rules. Similarly, the University of Washington Revocation Policy

grants to the Board of Regents the power to revoke degrees, upon recommendation

by an appropriate faculty, where a recipient of a degree failed to satisfy certain

standards at the time of its conferral. It is interesting to note that the university’s

rules provide, in relation to the time period given to a university to act, that

“if the failure to satisfy those requirements is due to any other cause, including the

mistake or oversight of the employees of the university, the power may be exercised

only within two years of granting the degree and only if, considering the seriousness

of the deficiency involved, it is found that to do so will not work an undue hardship

upon the individual concerned other than the withdrawal of the degree”.

26. The respondent did not raise any argument in opposition to Mr Kemp’s

exposition of the common law position, which would have been available to the

respondent should it wish to have revoked a degree. Except where a university has

been given specific powers to revoke a degree, Mr Kemp submitted that the default

position under the common law is restricted to two narrow sets of circumstances, but

must be preceded by an application to Court. In essence, the university, under the

common law had no authority to act without sanction of the Court.

19

27. A review of foreign cases suggests that many universities, as part of their

institutional rules stipulate their authority to withhold degrees for social misconduct.

In Harwood v John Hopkins University 747 A.2d 205, 210-12 the university denied a

diploma to a student who pleaded guilty to the murder of a fellow student. The

student had fulfilled all of the academic requirements a few months before the

shooting and was waiting to graduate at a ceremony which occurred once a year.

The Maryland court upheld the power of the university to withhold the degree

because the student’s violation of its code of conduct amounted to a breach of

contract. On the other hand, in Johnson v Lincoln Christian College 501 N.E.2d

1380 (Ill. App Ct, 1986) the Illinois appellate court rightfully came to the assistance of

a student whose degree was withheld because the college disapproved of his sexual

orientation. The Court held that in contract, a college could not maliciously or in bad

faith refuse to grant a degree to a student who has fulfilled the requirements for

graduation. See People ex rel. O’ Sullivan v New York Law School 22 N.Y.S 663 at

p.665 (N.Y Sup. Ct. 1893) where the court upheld the withholding of a degree of a

student who, after completion of the final examinations, but prior to the graduation

has acted in a manner “justifying the refusal of the faculty to recommend the student

as one to whom a degree should be conferred”.

28. The authorities cited above accord with the common law position, as

submitted by Mr Kemp, which is available to a university in cases of misconduct.

One could further argue that even in the absence of express contractual provisions

which would grant authority to the university to withhold a degree due to non-

academic misconduct, this would not affect a university’s right to approach a court

for such relief. However, counsel added further that the university’s case is based

on the factual position that Msweli-Mbanga barely considered the applicant’s revised

20

thesis and simply ushered the thesis through, or fast-tracked it, as she is alleged to

have done with another student. Counsel submitted that even if the respondent

were to have approached Court on those grounds to revoke the applicant’s degree, it

would be met by the dictum in Thompson, trading as Maharaj & Sons v Chief

Constable, Durban 1965 (4) SA 662 (D) which is authority for the view that a court or

quasi-judicial body is not permitted to reverse a decision given by it which is intra

vires, merely on the ground that it was given without proper consideration of the

facts. A person to whom a statutory power is entrusted is functus officio once he has

exercised it and thereafter cannot call his own decision into question. See MEC for

Health, Province of Eastern Cape NO and another v Kirland Investments (Pty) Ltd

2013 [ZASCA] 58.

The Statutory Framework

29. It is common cause that the respondent is a statutory corporate body that

exists in terms of section 20 of the Higher Education Act. In terms of section 27(1) of

the HEA the governance of a public higher educational institution is vested in the

council. Section 32 makes further provision for the council of a public higher

educational institution to make an ‘institutional statute’ to give effect to any matter not

expressly prescribed in the HEA. The respondent accordingly passed the Statute of

the University of Natal, (the ‘institutional statute’). In terms of the latter, the council is

defined in section 1 as the ‘governing body’ of the University, and the senate the

body responsible for ‘academic matters’. Section 7 of the institutional statute

provides that the function of council includes making rules for the university as well

as, with the approval of the senate, after each examination session exclude or refuse

to renew or continue the registration of a student who has failed to meet the

21

academic requirements for continued registration. In terms of section 21, the senate

is accountable to the council for all the teaching, learning, research and academic

functions of the University and all other functions delegated or assigned to it by the

council. It should be noted that the earlier version of the institutional statute issued

under Government no. 964 on 7 August 1999 accords in most respects with the

present formulation relating to the powers of the council and senate. However,

section 67 of the institutional statute, which is discussed below, is a recent

amendment having been made in 2012, after the withdrawal of the applicant’s

degree.

30. Ms Gabriel, who appeared with Ms Konigkramer for the respondent,

submitted that a proper reading of sections 21 and 22 of the institutional statute,

together with the provisions of the HEA, must lead to the conclusion that while the

council is responsible for the governance of the university, all matters pertaining to

academic integrity fall within the purview of the senate. This argument is attractive if

one confines the interpretation of the statute only to the definitions section and that

dealing with the functions of each entity. The respondent further contends that

inasmuch as the Senate is obliged to conduct its duties in the best interests of the

respondent, this must extend to include protecting the integrity and standard of the

degrees conferred by the respondent. I am not convinced by this argument for the

simple reason that one must also assume that when council discharges its duties in

terms of the HEA or the institutional statute, it too must be inferred as is acting in the

best interests of the university. There is no room for a contrary interpretation. The

underlying assumption that both senate and the council will act in the best interests

of the university affords no basis for reading in to the statute powers that are not

conferred on them.

22

31. I now turn to the provisions of section 65B of the HEA, which the respondent

contends empowers it to award diplomas and confer degrees, subject to a student

being registered at the institution. The section reads as follows :

65B. Degrees, diplomas and certificates

(1) A public higher education institution may, subject to its institutional statute and

this Act, award diplomas and certificates and confer degrees.

(2) Save as is provided in section 65C, no diploma or certificate may be awarded and

no degree may be conferred by a public higher education institution upon any

person who has not-

(a) been registered as a student of such public higher education institution for the

period prescribed by the senate of such institution; and

(b) completed the work and attained the standard of proficiency determined

through assessment as required by the senate of the public higher education

institution, subject to section 7.

[S. 65B inserted by s. 24 of Act 23/2001]

32. Of particular importance to the application before me is the wording in section

65B(2)(b) which requires that a student must have first “completed the work and

attained the standard of proficiency determined through assessment as required by

the senate of the public higher education institution”. Ms Gabriel submitted that it is

implied in the wording of this section that where an institution, such as the

respondent, has the power to confer degrees, so too must it have the power to revisit

the awarding of degrees on good cause, investigate circumstances whether students

had in fact attained the standards of proficiency at the time when the degree was

conferred and that it also has the power to revoke the degree should it be found that

a student failed to reach the necessary standard for conferral. I understood ‘good

cause’ in the context of this argument to include matters such as fraud or dishonesty.

23

33. A literal reading of the section, read as a whole, suggests that a university or

college reserves the right not to confer a degree or diploma on a student who has

not attained the requisite standard of proficiency in a particular course. This, on my

interpretation, is a power vested in the institution before a student is conferred with

the degree. There is indeed authority that Courts have long deferred to universities’

decisions to expel students on grounds of academic misconduct. Ms Gabriel

referred me to a journal article which cited the decision of Board of Curators on

University of Missouri v Horowitz 435 U.S. 78 (1978) where the Supreme Court held

[at p. 91] that “judicial interposition in the operation of the public school system of the

Nation raises problems requiring care and restraint”. The focus of the Court’s

attention was directed more at the student’s rights of procedural fairness. Once this

threshold was satisfied, the Court found no basis to interfere in the universities

decision.

34. Although I was not referred by counsel to any case law in support of the

respondent’s argument of an implied power to revoke a degree, I find the exposition

by Cora Hoexter, Administrative Law in South Africa, 2nd ed, p. 43-44 on express and

implied powers of administrators to be helpful in the context of the issue at hand.

The learned author states

“As a general rule, express powers are needed for the actions and decisions of

administrators. Implied powers may, however, be ancillary to the express powers, or

exist either as a necessary or reasonable consequence of the express powers. Thus

‘what is reasonably incidental to the proper carrying out of an authorised act must be

considered as impliedly authorised’. Just as the power to make omelettes must

necessarily include the power to break eggs, so the power to build the dam may

include the power to expropriate property or to remove silt. It is well accepted that

the power to make a regulation implies the power to withdraw it - an instance of

implication by virtue of an inheritance relationship - and that ‘a prohibition to let

24

carries a prohibition to hire’ by virtue of a mutual relationship. It has been held, too,

that a power to suspend municipal councillors is reasonably necessary to carry out

the express function of investigating corruption or fraud”

As I have already stated, the plain wording of section 65B of the HEA confers no

express power on a university to revoke a degree, once it has been conferred. What

then of the argument of an implied power? Words cannot be read into a statute by

implication unless the implication is a necessary one, in the sense that without it,

effect cannot be given to the statute as it stands (see Rennie NO v Gordon and

another NNO 1988 (1) SA 1 (A) at 22E–G. See too American Natural Soda Ash

Corporation & Another v Competition Commission of South Africa [2005] 3 All SA 1

(SCA) para 27).

35. In Berg River Municipality v Zelpy 2065 (Pty) Ltd 2013 (4) SA 154 (WCC) at

para 27 Rogers J noted that

“Moreover, any statutory function can, after all, only be validly performed within the

limits prescribed by the statute itself, and, where a fact or a state of affairs is

prescribed as a precondition to the performance of the function (a so-called

jurisdictional fact), that fact or state of affairs must obviously exist and be shown to

have existed before it can be said that the function was validly performed. (Cf

Roberts v Chairman, Local Road Transportation Board and Another 1980 (2) S A 472

(C) at p 476 H-477A; S v Ramgobin and Others 1985 (3) S A 587 (N) at p 590I-591C.)

In Berg River, the Court was faced with an application for a final interdict by the

municipality in terms of s 4 of the National Building Regulations and Building

Standards Act 103 of 1977 which prevented the owner from occupying or using

certain buildings on the property constructed in violation of the Act, until an

occupancy certificate had been issued. One of the arguments raised by the owner

was that section 14(4)(a) of the act did not state, at least not expressly, that it was

25

unlawful to use a building which has been unlawfully erected. The Court dismissed

the owner’s opposition, but in do stated the following in relation to powers not

expressly provided for in a statute :

“However, in Palvie v Motale Bus Service (Pty) Ltd [1993] ZASCA 105; 1993 (4) SA 742

(A) the court said, with reference to Rennie NO, that the linguistic modification of the

statutory provision under consideration in Palvie so as to extend it to cases not

expressly mentioned was ‘not necessary to realise the ostensible legislative intention

or to make the Act workable’ (749C). This reference to achieving the ostensible

legislative intention was repeated by the Constitutional Court in Bernstein & Others v

Bester & Others NNO [1996] ZACC 2; 1996 (2) SA 751 (CC) at para 105. In National

Director of Public Prosecutions & Another v Mohamed NO & Others [2003] ZACC 4;

2003 (4) SA 1 (CC) at para 48, and in Masetlha v President of the Republic of South

Africa & Another [2007] ZACC 20; 2008 (1) SA 566 (CC) at para 192, it was said that

an implication must be necessary in the sense that without it effect cannot be given

to the statute as it stands and that in addition the implication must be ‘necessary in

order to realise the ostensible legislative intention or to make the [statute]

workable’. [para 28]

36. On my interpretation, it cannot be said that the provisions of the section 65B

of HEA, as it stands, cannot be given effect to. The section plainly provides for the

university not to confer a degree to a student who has not achieved a level of

academic proficiency. In other words, if a student fails, he or she does not graduate.

This, in my understanding, does not detract from the common law right of the

university to withhold or revoke a degree for reasons of material error or fraud or

misconduct. In any event, one of the criteria for a degree being conferred is that the

student must have been “registered” with the university. In my view, where this

registration comes to an end, in the sense of the student having completed his

studies and exited the university, there would no longer exist the pre-condition for the

26

university to act as set out in section 65B(2)(a) of the HEA. This issue is expanded

on when dealing with the respondent’s argument of a contractual right to take action

against the applicant.

37. In light of what is set out above, I am not convinced by the respondent’s

argument that section 65B should be read in a manner as to impliedly grant powers

to it to revoke degrees once they are granted.

38. I now turn to the provisions of section 67 of the institutional statute, which it is

common cause between the parties, did not exist at the time when the respondent

revoked the applicant’s degree. The statute provides for the following :

67. Award of qualifications

(1) Degrees are conferred and diplomas and certificates are awarded at a

congregation which shall be held at least once a year on a date to be announced at

the beginning of every academic year.

(2) The chancellor, or in his or her absence, the vice-chancellor or a deputy vice-

chancellor, shall preside at a congregation.

(3) A person is not entitled to any privilege conferred by any degree before he or she

has been admitted to such a degree, or to any privilege conferred by any diploma or

certificate before he or she has been awarded such a diploma or certificate at a

congregation.

(4) The council, in consultation with the senate, has the power to withdraw the

conferment of any degree, diploma, certificate or other qualification that was

conferred in error or if the recipient of such degree, diploma, certificate or other

qualification had committed a dishonest act in connection with the obtaining of such

degree, diploma, certificate or other qualification.

39. The institutional statute now expressly confers authority to the respondent to

withdraw degrees conferred in error, or where there is evidence of dishonesty. At

first glance, the conclusion reached is that the respondent has now codified the

common law position referred to earlier. However, the amended section also does

27

more to clarify which entity of the respondent is vested with the power of withdrawal

or revocation. It is common cause that the decision to withdraw the applicant’s

degree on 2 November 2011 was taken by Senate alone. The respondent has

maintained this view throughout, contending that a reading of the institutional statute

vests this power in the Senate. The applicant on the other hand contends that

degrees are conferred by council as the governing body of the university and not by

senate. This is a different enquiry from whether senate was permitted to initiate an

investigation in to the applicant’s conduct.

40. It is trite that a functionary can exercise no greater rights than that conferred

by statute. While section 65B of the HEA provides that a degree cannot be

conferred unless a student attains a degree of proficiency set by senate, this does

not necessarily equate to senate having the powers to revoke a degree. The senate,

as reflected in the institutional statute, is only responsible for academic matters and

issues of academic integrity. There is nothing in the HEA or the institutional statute

that points to the senate as the body which confers degrees. It must follow that

unless otherwise stated, such powers of revocation, if they existed at the time, could

vest only in the body that conferred the degree and not the body which was vested

with powers to set the standards for academic achievement. It is said that things

become clearer with hindsight, and this matter is no different. If one has regard to

the new formulation of section 67(4) of the institutional statute, it is clear that the

decision to revoke or withdraw a degree may only be taken by “council, in

consultation with senate”. The Constitutional Court in Premier, Western Cape v

President of the Republic of South Africa 1999 (3) SA 657 (CC) in relation to the

obligation of a functionary in terms of section 233(4) of the interim Constitution to

consult with another functionary before taking a decision, said the following

28

“Although there are no comparable provisions in the 1996 Constitution, it was

correctly accepted by counsel in the present case that the distinction between ‘in

consultation with’ and ‘after consultation with’ is that the former calls for

concurrence, while the latter does not”.

See too President of the RSA and Others v SARFU and Others 1999 (10) BCLR

1059 (CC) where the Court noted that consultation can range from a protracted and

deliberate exchange of views to obtaining a swift signification of consent. In Minister

of Health and Another v New Clicks SA (Pty) Ltd and Others (Treatment Action

Campaign and Innovative Medicines SA as amici curiae) 2006 (1) BCLR 1 (CC) the

Court held that the words providing for a determination on the pricing of medication

by the Minister “after consultation with the Pricing Committee” meant that the

Minister would give serious consideration to the views of the Pricing Committee, but

would leave her free to disagree with them.

41. I can find nothing in either the HEA or the institutional statute that vests the

power to revoke a degree exclusively with the senate or council. The formulation

now contained in the institutional statute presently provides that such a decision

must be the result of a concurrence between the two entities. The amendment

introduced in s67 of the institutional statute has not altered the delineation of

authority between the council and senate from that which existed at the time when

the applicant’s degree was revoked. Accordingly, and to the extent that the

respondent has not been able to refer to any express provision in the legislation

authorising it to act, or for a basis for such powers to be exercised to the exclusion of

the council, I find that the senate had no authority to take the decision it did on 2

November 2011.

42. I turn to deal with the further argument that the respondent is estopped from

relying on the negligence or dereliction of duty by its own employees in order to

29

justify the revocation. In substantiation of the argument, Mr Kemp pointed out that

the applicant presented her thesis in the manner called for by the respondent; it was

subjected to comment and analysis by three examiners, two of whom were satisfied

that upon the corrections which they had suggested being attended to, that they

would recommend the degree being awarded. The third examiner was less

benevolent, finding that the applicant’s work was not of a doctoral standard. Counsel

submitted that this is precisely why three examiners rather than two are appointed,

and that the opinion of the majority of the examiners must prevail.

43. It is not disputed that the applicant, in her opinion, attended to the corrections

suggested by the examiners. Thereafter, the process required that her supervisor

had to be satisfied that the corrections suggested by the examiners had been

satisfactorily attended to. Msweli-Mbanga was satisfied with the revisions and

recommended that the applicant be placed on the list to graduate. It only later

transpired that the faculty co-ordinator, Coldwell, did not submit his report prior to the

applicant being placed on the graduation list. It is only from the affidavits of

Lancaster and Coldwell that one learns that Coldwell either forgot to complete his

report when asked to do so, or that the documents were misplaced during a

relocation of offices. What is important though is that when Coldwell eventually

came around to compiling his report a year later, he found no reason why the

applicant should not have had the degree conferred when it was. To the extent that

the respondent seeks to rely on the absence of Coldwell’s report prior to her

graduation, should the conferment of her degree been stayed while waiting for

Coldwell to complete his report, which he took more than a year to do? I think not.

Mr Kemp, correctly in my view, submitted that the respondent is estopped from

disavowing the representation made to the applicant. If the university has found fault

30

with the processes and procedures not followed by its own academic staff, this is

hardly a reason to prejudice the applicant by revoking her degree.

44. Much emphasis was placed by the respondent on the short turn-around time

within which the applicant submitted her revised thesis. Nothing turns on this fact. It

is simply an innuendo that the applicant could never have addressed the corrections

of the examiners in a period of 10 days, again leading to the inference that she was

engaged in a corrupt relationship with her supervisor. On the contrary, Coldwell

confirmed that once the applicant’s supervisor was satisfied with the corrections, this

was all that was necessary for the applicant to graduate. As counsel for the applicant

pointed out, it has not been proven that the applicant was in a position to influence

any of the decisions made in the process leading towards her graduation. How was

she to know that her supervisor may have spent less time than necessary in

reviewing her revised thesis? Alternatively, Mr Kemp posed the scenario of the

university discovering years after a student had written an examination, passed and

graduated from the university with a degree, that the lecturer marking the script was

intoxicated at the time, to the extent that he would not have been of sound judgment.

A new lecturer is appointed years later to review the script and changes the mark

from a pass to a fail. As a consequence, the student does not meet the academic

criteria and the degree is revoked by Senate. Mr Kemp pertinently pointed out that

while a student who feels aggrieved at a particular mark accorded to him or her may

apply for a remark, the university has no such luxury. It is under a duty to get it right

the first time.

45. The question which arises is whether the student should be prejudiced

because of the aberration and dereliction to duty by an agent of the respondent? In

the circumstances, I am in agreement that the respondent is estopped from

31

disavowing that its academic staff discharged the duties in accordance with the

policies and procedures of the institution. In the context of estoppel that arises from

a person’s inability to speak out, Sir Rupert Cross (Evidence, 5 ed, 1979 at 349)

referred to it as a “type of estoppel ….in which the party whose favour it operates is

the victim of the fraud of some third person facilitated by the careless breach of duty

of the other party”.

46. The applicant further contended that having conferred a degree on her, the

respondent was functus officio and had no power to revisit its decision, less still to

revoke the degree. In arriving at its decision to revoke the degree, the applicant

relied on the views of a fourth examiner, appointed in terms of its internal processes,

to review whether the applicant had complied with the changes suggested by the

external examiners (and to a lesser extent the internal examiner, who suggested that

she should not graduate). In essence, what the fourth examiner did was to review

the assessment of Van Esch and Remenyi, and to a lesser extent the decision of

Msweli–Mbanga, who decided that the applicant could graduate.

47. The respondent, in conferring a degree on a student, bestows an academic

credential which certifies that the holder has completed a particular course of study –

it serves an “objective indices of merit” and is used as a ‘passport into the

professional workforce”. See Johnston and Oswald, Academic Dishonesty:

Revoking Academic Credentials, The John Marshall Law Review, 67, 1998-1999.

Once granted, a degree is never returned, unless in exception circumstances. It is

this context of the finality of the decision, that reference is made to Hoexter,

Administrative Law in South Africa (2 ed) (2012) at 278 where the learned author

states:

32

‘In general, the functus officio doctrine applies only to final decisions, so that a

decision is revocable before it becomes final. Finality is a point arrived at when the

decision is published, announced or otherwise conveyed to those affected by it.”

Baxter in Administrative Law (1984) at 372 stated the following of the ability or

powers of administrative bodies to make such corrections or amendments:

‘Indeed, effective daily administration is inconceivable without the continuous

exercise and re-exercise of statutory powers and the reversal of decisions previously

made. On the other are hand, where the interests of private individuals are affected

we are entitled to rely upon decisions of public authorities and intolerable

uncertainty would result if these could be reversed at any moment. Thus when an

administrative official has made a decision which bears directly upon an individual’s

interests, it is said that the decision-maker has a discharged his office or is functus

officio.’

48. In Retail Motor Industry Organisation and another v Minister of Water and

Environmental Affairs and another [2013] 3 All SA 435 (SCA), the Court at para 23

referred to an explanation of the functus officio principle by DM Pretorius, The

Origins of the Functus Officio Doctrine, with Specific Reference to its Application in

Administrative Law” (2005) 12 SALJ 832, as follows:

“The functus officio doctrine is one of the mechanisms by means of which the law

gives expression to the principle of finality. According to this doctrine, a person

who is vested with adjudicative or decision-making powers may, as a general rule,

exercise those powers only once in relation to the same matter. . . The result is that

once such a decision has been given, it is (subject to any right of appeal to a

superior body or functionary) final and conclusive. Such a decision cannot be

revoked or varied by the decision-maker.” (my underlining)

The Court noted at paragraph 24-25 that the principle is also intended to foster

certainty and fairness in the administrative process.

“It is not absolute in the sense that it does not apply to every type of administrative

action. Certainty and fairness have to be balanced against the equally important

33

practical consideration that requires the re-assessment of decisions from time to time

in order to achieve efficient and effective public administration in the public interest.”

49. It was submitted on behalf of the applicant that it is untenable that almost six-

and-half years after having been conferred with her PhD the respondent deemed it fit

to revoke the degree. The respondent, other than explaining the lengthy process it

had embarked upon to investigate the matter and the intervening process of the

criminal trial against the applicant and her supervisor (of which they were acquitted),

was able to offer little in rebuttal to the applicant’s submission of an undue delay

between the granting of the degree and the date of revocation. A similar question is

posed, albeit in the context of revocation for non-academic conduct, in the article

Massachusetts Institute of Technology (MIT) v MIT : Revocation for Non-Academic

Reasons, Case Western Reserve Law Review, 749, 2000-2001. The authors raise

the question of where the line be drawn – where will it end. “What if 20 years from

now an MIT alumnus is accused of rape by a woman who backs up her charge with

DNA evidence – would the university revoke his degree”. The respondent in the

present matter is of the view that it has a public law duty to protect the integrity of the

degrees it confers. Can the respondent choose whether its public duty to protect the

integrity of its degree extends only to academic reasons? What of an alumnus, who

rises to public office only to be accused of human rights abuses years later. Would

the respondent seek in those circumstances to revoke the degree?

50. The more rational explanation would tend to favour the approach that once a

functionary, in this case a university, has exercised a public power in terms of the

HEA and conferred a degree upon a student, it should not be permitted to reverse

that decision unless in the narrow circumstance of fraud or misconduct. As to the

respondent’s argument that its authority for revocation, if not implied under the HEA,

34

must stem from a contractual relationship with the student. I find this argument

unconvincing for the simple reason that the university’s contractual relationship with

a student ceases upon the conferment of his or her degree. There can be no

argument, in my view, of a residual relationship, implied or otherwise. Similarly I find

that there is no basis for the respondent’s contention that if a student fails to meet a

required academic standard, this constitutes a beach of the contractual relationship

between the student and the university. I am of the view that when a student

registers at a university he enters into a contract to observe certain rules relating to

conduct, academic progress and other related matters. A student who fails a course

does not commit a contractual breach. He may obviously not graduate, but that is

not a breach of contract. It may only in the case of repeated failure, that the student

could be de-registered. These circumstances have no application to the matter

before me.

51. Ms Gabriel informed me that she was unable to find any South Africa case

authority which permits a university to withdraw a degree which has been already

conferred on a student. She instead relied on a host of foreign cases and journal

articles, all of which I found very academically interesting. I am also mindful of the

statement in S v Makwanyane 1995 (3) SA 391 (CC), at paras 34, 35 and 39 where

Chaskalson P set out the approach that ought to be employed by a court when

considering how to use international law in interpreting the meaning of a provision in

the Bill of Rights. The Court noted that

“In dealing with comparative law, we must bear in mind that we are required to

construe the South African Constitution, and not an international instrument or the

constitution of some foreign country, and that this has to be done with due regard to

our legal system, our history and circumstances, and the structure and language of

35

our own Constitution. We can derive assistance from public international law and

foreign case law, but we are in no way bound to follow it.”

52. Applying these ‘cautionary rules’ to the review of foreign case law, it must be

remembered that the respondent’s case is that it had the authority (without the

necessity of applying to Court) to withdraw the degree conferred on the applicant. I

was referred to the decision The King v University of Cambridge (Bentley's Case)

(K.B. 1723), 8 Mod. Rep. 148 (1334) as authority for the proposition that as early as

the 13th century, the Courts have recognised the right of a university to withdraw a

degree for ‘reasonable cause’. . Chief Justice Pratt of the Court of King's Bench

stated:

“This is a case of great consequence, both as to the property, the honour, and the

learning, of this university, and concerns every graduate there, though at present it is

the case only of one learned man, and the head of a college. The question is, whether

the University can suspend and degrade, and by what rules they may proceed in either

or both of these cases?"

In this case the degree was restored as there had not been a hearing prior to

revocation. The primarily authority for the respondent’s case is Waliga v Board of

Trustees of Kent Sate Univ (supra) where the Ohio Supreme Court held

“We consider it self-evident that a college or university acting, through its board of trustees

does have the inherent authority to revoke an improperly awarded degree where (1) good

cause such as fraud, deceit, or error is shown, and (2) the degree holder is afforded a fair

hearing at which he can present evidence and protect his interest. Academic degrees are a

university's certification to the world at large of the recipient's educational achievement and

fulfilment of the institution's standards. To hold that a university may never withdraw, a

degree, effectively requires the university to continue making a false certification to the public

at large of the accomplishment of persons who in fact lack the very qualifications that are

certified. Such a holding would undermine public confidence in the integrity of degrees, call

36

academic standards into question and harm those who rely on the certification which the

degree represents. “

53. In Crook v Baker 813 F.2d 88 (6th Cir. 1987) the Appeals Court followed the

dictum in Waliga, holding that as Michigan universities acquired their status under

the Michigan state constitution, they have the authority to revoke previously granted

degrees. In this case the student was suspected of fabricating his data as part of his

master’s thesis. The university invited the student to re-conduct his experiments two

years later. Following the conclusion that the data had been fabricated, his degree

was revoked.

54. It seems to me that these cases are distinguishable from the present matter in

as much as Waliga and Crook were concerned with universities exercising powers

conferred on them by state legislation. In Waliga, the Ohio Supreme Court did also

not explain in any way the rational for the conclusion that if a university has the

authority to confer a degree, it must be implied that it has the authority to revoke the

degree. Moreover, the powers exercised by the universities in Waliga and Crook are

no less than those now provided for in section 67 of the institutional statute. What

the respondent appears to be contending, although not stated on its papers, is for a

retrospective application of section 67 of the institutional statute. For these reasons I

am not convinced that the dictum of Waliga finds direct application to the matter

before me, or in the context of the legislative framework, is authority to extend an

implied power to revoke a degree conferred by a university, without the need to

approach a Court.

55. Notwithstanding the conclusions that I have reached above, I am obliged to

deal with the contention of the respondent that its decision to withdraw the

degree conferred on the applicant did not constitute administrative action “as the

37

legal nexus between the applicant and the respondent is contractual”. I have

already expressed my view jettisoning the respondent’s reliance on contract.

Insofar as the contention that its revocation did not amount to administrative

action, the Constitutional Court stated the following in President of the Republic

of South Africa and Others v South African Rugby Football Union and Others

2000 (1) SA 1 (CC) in para 141 in attempting to define ‘administrative action:

“In s 33 the adjective "administrative" not "executive" is used to qualify "action".

This suggests that the test for determining whether conduct constitutes

administrative action is not the question whether the action concerned is

performed by a member of the executive arm of government. What matters is not

so much the functionary as the function. The question is whether the task itself is

administrative or not. It may well be, as contemplated in Fedsure, that some acts

of a legislature may constitute "administrative action". Similarly, judicial officers

may, from time to time, carry out administrative tasks. The focus of the enquiry as

to whether conduct is administrative action is not on the arm of government to

which the relevant actor belongs, but on the nature of the power he or she is

exercising.'

Hoexter in Administrative Law in South Africa at 67 offered the following

contribution in an attempt to define administrative action :

'In the SARFU case the Constitutional Court admitted that deciding what is and

what is not administrative action may be difficult and suggested that it would

have to be done on a case-by-case basis. It offered the following as relevant

considerations in the diagnosis: the source of the power, the nature of the

power, its subject matter, whether it involves the exercise of a public duty and

how closely it is related to policy matters - which are not administrative - or to

the implementation of legislation which is characteristic of administrative action.'

56. I have taken into account that in conferring a degree on the applicant the

respondent did so, acting in terms of national legislation, in the form of the HEA, read

38

with the provisions of the institutional statute. It has contended that its power to

revoke the degree, by action of the senate, is derived by virtue of an implied power

under section 65B of the HEA. In terms of the definition of ‘administrative action’ in

section 239 of the Constitution, it relates to any department of state or national,

provincial or local government, or any other functionary or institution, exercising a

power or performing a function in terms of the Constitution or a provincial

constitution, or exercising a public power or performing a public function in terms of

any legislation. In my view there is no basis for the contention that the respondent’s

senate, when it acted to revoke the applicant’s degree, did not do so in the belief that

it was exercising a public power in terms of the HEA. The conclusion is bolstered by

the respondent’s averment that it took the decision to revoke as part of its ‘public law

duties’ to protect the integrity of its degrees and maintain its reputation in the eyes of

the public. As set out at the earlier, the institutional statute refers to the senate as

having jurisdiction in matters of “academic integrity”. This, in my view, gave the

respondent’s action “the necessary public character, as opposed to a private

character.” See Nshangase v MEC: Finance, KwaZulu-Natal 2010 (3) 201 (SCA).

The actions of the respondent clearly had a direct, external, legal effect on the

applicant – she was suspended from employment, criminally charged with corruption

and her reputation stymied as a result of the revocation. See Sokhela and Others v

MEC for Agriculture and Environmental Affairs (Kwazulu-Natal) and Others 2010 (5)

SA 574 (KZP).

57. In light of the conclusions I have reached above, I find that the senate had no

legal authority to revoke the applicant’s degree or to have appointed a fourth

examiner to review her thesis, which had been the basis of the conferment of her

degree. The reliance on an implied authority to revoke the applicant’s degree held

39

no water, and I am of the view that other than cases of fraud or misconduct and

material error, the university could not have lawfully revoked the applicant’s degree.

I am satisfied that costs should follow the result, although not on the punitive basis

sought by the applicant.

I accordingly make the following orders :

1. The respondent’s decision, taken by its Senate on 2 November 2011 in terms

whereof the Applicant’s PhD degree had been withdrawn, is hereby reviewed

and set aside;

2. The Respondent is ordered to pay the applicant’s costs, including the cost of

two counsel.

_______________________

M R CHETTY,

Acting Judge of the High Court,

Durban

40

Appearances :

Counsel for the Applicant : Adv. KJ Kemp SC with him

Adv. ES Crots

Applicant’s Attorneys Strauss Daly Inc (Ref : A Swart)

Counsel for the Respondent : Adv. AA Gabriel SC with her

Adv. MA Konigkramer

Respondent’s Attorneys Shepstone & Wylie (Ref : B Armstrong)

Date of hearing 4 November 2013

Date of Judgment 24 January 2014