IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

CASE NO: 297/2013
Reportable

In the matter between:
DEAN OF THE LAW FACULTY OF THE
UNIVERSITY OF NORTH WEST

First Appellant

VICE CHANCELLOR OF THE UNIVERSITY
OF NORTH WEST

Second Appellant
NORTH WEST UNIVERSITY STATUTORY
BODY REPRESENTED BY THE RECTOR OF THE
MAHIKENG CAMPUS

Third Appellant
and
MORAMANG SIMON MASISI

Respondent

and
HIGHER EDUCATION SOUTH AFRICA NPC

Amicus Curiae
Neutral Citation:
Dean of the Law Faculty of the University of North West & others v
Masisi (297/2013) [2014] ZASCA 2 (20 February 2014).
Coram:
NAVSA, MHLANTLA and PETSE JJA, VAN ZYL and SWAIN AJJA
Heard:

20 February 2014
Delivered:

20 February 2014
Summary:

Appeal from Equality Court – complaint in Equality Court
concerning university’s refusal to give credit for more than 50 per
cent of courses completed at another university – university rules
and policy with statutory underpinning set aside by Equality Court –
failure to provide Minister of Education and other universities or their
collective voice with opportunity to participate in proceedings –
orders set aside and matter remitted.

______________________________________________________________________
ORDER
______________________________________________________________________

On appeal from: The Equality Court of South Africa (North West High Court, Mahikeng)
(Lacock J sitting as court of first instance).

The following order is made:

1.
The appeal is upheld to the extent reflected in the paragraphs that follow.

2.
The order of the Equality Court, North West High Court is set aside;
3.
The dispute is referred back to the Equality Court, North West High Court to be
dealt with de novo;
4.
The respondent shall ensure that he will serve a copy of this order and founding
papers stating the relief he seeks on all interested parties including (but not limited to)
the Minister of Education, The Council on Higher Education, Higher Education South
Africa (HESA) and affording them an opportunity to join the dispute and make
representations thereon;
5.
Any party so identified must respond within the time periods provided in Rule 6 of
the Uniform Rules;
6.
The Equality Court, North West High Court shall take steps to ensure that the
dispute is determined as expeditiously as possible, and may issue directions for the
conduct of the proceedings;

7.
The costs of the proceedings in the Equality Court and in this Court shall be
costs in the cause.

______________________________________________________________________

JUDGMENT
______________________________________________________________________
The Court:

[1] This is an appeal against a judgment of the Equality Court, Mahikeng (Lacock J).
Simply put, the litigation leading up to the present appeal arose because the
respondent, Mr Moramang Simon Masisi, was aggrieved that the three appellants, the
Dean of the Law Faculty of the University of North West, the Vice Chancellor of the
University of North West and the North West University Statutory Body represented by
the Rector of the Mahikeng Campus, refused to give him academic credit for all the
courses he had completed in obtaining his B.Proc degree from the University of the
North in pursuance of his LLB degree for which he had latterly registered at the
University of North West (UNW). Essentially, the respondent complained that he was
being discriminated against and that his constitutional right to equal treatment had been
violated. The reasoning on which this was based appears to be as follows: students
who began and completed their B.Proc degrees at the UNW were given credit for all
their courses or modules completed in attaining the degree, whilst those who obtained
their B.Proc degrees from other universities were treated differently and only obtained
credit for 50 per cent of the courses completed in obtaining their B.Proc degrees. This

discriminatory treatment, so it was alleged, was contrary to the provisions of the
Promotion of the Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the
Equality Act).

[2] In refusing to recognise more than 50 per cent of the courses or modules
completed by the respondent at the University of the North. the University of the North
West considered itself bound by its own General Academic Rules to that effect.
Furthermore, the University of the North West considered itself bound by s 18(2) of the
Joint Statute of the Universities in the Republic of South Africa approved by the Minister
of Education, Arts and Science under the Universities Act 61 of 1955, the relevant
provisions of which require a minimum period of attendance at the university to which
he has applied for exemption and which in addition stipulates that a student has to
complete at least half of the courses prescribed for the degree at such university.

[3] The respondent took his complaint to the Equality Court, established in terms of
s 16 of the Equality Act, which made the following order:
‘1. The provisions contained in the paragraphs 15.1.1, 15.1.3, 15.2.1 and 15.2.3 of Rule G15 of
the General Academic Rules of the North West University are hereby struck down and declared
null and void.
2. The proviso to Rule A5.7.1 of the General Academic Rules of the North West University
reading,, “provided that exemption shall not be granted for more than half of the number of
modules required for the curriculum” is hereby struck down and declared null and void.

3. Section 18(2)(b)(i) and (ii) of the Joint Statute of the Universities in the RSA approved by the
Minister of Education, Arts & Science under the Universities Act no 61 of 1955 (the Joint
Statute), is hereby struck down and declared null and void, except to the extent that section
8(2)(b)(ii) apply to candidates writing the degree of Bachelor of Education (B.Ed) or Bachelor of
Physical Educaiton (B.Ed.Ph.) a Bachelor of Philosophy (B.Phil.).
4. The first to third respondents are directed to grant exemption to the applicant for purposes of
writing the LLB degree of all those applicable courses and/or modules successfully completed
by the applicant at the University of the North (presently the University of Limpopo) for his
B.Proc degree.
5. The first to third respondents are directed to jointly and severally pay the applicant’s costs of
the application.’

[4] The breadth of the order referred to above is such that the Joint Statute of the
Universities in South Africa, which has statutory underpinning and is consonant with
The Higher Education Qualifications Framework, published by the Minister of Education
acting within her statutory powers has been set aside. The order clearly affects all
universities in South Africa and impacts on government policy. It is necessary to point
out that, although the Minister of Education was cited as a party to the litigation in the
Equality Court, the respondent ultimately indicated that no relief would be sought
against the minister. As a consequence the minister did not participate in the
preceedings in the Equality Court. None of the other universities was cited as a party.

[5] Before us the Higher Education South Africa NPC (HESA), a non-profit company
registered in terms of the Companies Act, appeared as amicus curiae. HESA represents
23 South African universities and asserts that it is the voice of South Africa’s university
leadership. HESA referred to the joint statute referred to earlier in this judgment, which
is delegated legislation and remains in force in terms of s 74(6) of the Higher Education
Act 101 of 1997 and contended that all universities in South Africa are required to
comply therewith and that the policy underlying the joint statute is supported by it. The
Higher Education Qualifications Framework published in October 2007 by the Ministry
of Education has the same underlying policy.

[6] In its application to be admitted as amicus curiae in this court, HESA provided
the following justification for the policy referred to in the preceding paragraph:
‘By conferring a degree, a university represents to the public that the graduate concerned
received the training offered by that university and met its applicable requirements. Section
18(2)(b) of the Joint Statute has the effect that a student must complete at least half of his or her
university courses at the university conferring the degree. This enables the university conferring
the degree to have confidence that the student does indeed meet the standards which it
proclaims and on which its reputation rests. . . .in passing that in certain prestigious foreign
universities, no recognition whatsoever is given to courses passed at other universities, no
doubt for much the same reason.’

[7] HESA was not a party to proceedings in the Equality Court. Its contentions are
not evidence and evidence in this regard was not presented in the Equality Court nor
were any representations made in that regard. It is necessary to point out that the
University of North West was very brief in its opposition to the relief sought by the
respondent and did not make submissions or present evidence on the issues raised by
HESA.

[8] In the Equality Court a directions hearing in terms of s 10(5) of the rules of the
Equality Court, resulted in the issues to be tried dubiously being narrowed as follows:
‘4.1 Whether the First Applicant has a justifiable cause of action against the Respondents, and
whether any of the Respondents are liable for payment of damages to the First Applicant.
4.2 Whether any claim for the payment of damages – if any – had become prescribed.’

[9] The order set out above in para 3 went well beyond what was contemplated in
the preceding paragraph. This was probably due to a lack of proper thought being given
to whether those issues could viably be delinked from the statutory underpinning for
university policy. Before us questions were raised about the power of the Equality Court
to issue the order referred to above. The appellants also contended that it was not
competent for the Equality Court to decide issues beyond those identified at the
directions hearing.

[10] It is undesirable and inappropriate for courts to make orders declaring statutory
provisions and policy directives thereunder invalid without providing relevant organs of
state an opportunity to intervene. Indeed, it is undesirable for courts to make orders
affecting any party without affording such party an opportunity to oppose the relief being
sought. In the present case, the Minister of Education has a direct abiding and crucial
interest in the issues that arise from the respondent’s complaint and which are affected
by the order referred to above.1 In similar vein Rule 10A of the Uniform rules of Court
provides:
‘10A. If any proceedings before the court, the validity of a law is challenged, whether in whole or
in part and whether on constitutional grounds or otherwise, the party challenging the validity of
the law shall join the provincial or national executive authorities responsible for the
administration of the law in the proceedings and shall in the case of a challenge to a rule made
in terms of the Rules Board for Courts of Law Act, 1985 (Act. No. 107 of 1985), cause a notice
to be served on the Rules Board for Courts of Law, informing the Rules Board for Courts of Law
thereof.’

[11] Other universities or its collective voice, HESA, have a vital interest in the
litigation and a possible result. They too were not cited nor involved in the litigation in
the Equality Court. The Minister and HESA were both interested parties and ought, at
the very least, to have been afforded an opportunity to deal with all the issues raised by
the respondent’s complaint, including the question of the competence of the Equality
Court to make an order setting aside legislation. The parties might be well-advised to

1 See Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening) 1999 (2) SA 1 (CC)
and Parbhoo and others v Gets NO and another 1997 (4) SA 1095 (CC).

consider whether it is not in everyone’s interest that the litigation be shifted to the high
court to obviate any further uncertainty. In this regard the provisions of s 20(3)(a) of the
Equality Act are relevant. It should be borne in mind that this case is of vital importance
to tertiary education in South Africa.

[12] Having regard to what is set out above, the parties were agreed and we are
inclined to make the order that follows:
1.
The appeal is upheld to the extent reflected in the paragraphs that follow.
2.
The order of the Equality Court, North West High Court is set aside;
3.
The dispute is referred back to the Equality Court, North West High Court to be
dealt with de novo;
4.
The respondent shall ensure that he will serve a copy of this order and founding
papers stating the relief he seeks on all interested parties including (but not limited to)
the Minister of Education, The Council on Higher Education, Higher Education South
Africa (HESA) and affording them an opportunity to join the dispute and make
representations thereon;
5.
Any party so identified must respond within the time periods provided in Rule 6 of
the Uniform Rules;
6.
The Equality Court, North West High Court shall take steps to ensure that the
dispute is determined as expeditiously as possible, and may issue directions for the
conduct of the proceedings;

7.
The costs of the proceedings in the Equality Court and in this Court shall be
costs in the cause.

________________________
M S NAVSA
JUDGE OF APPEAL

________________________
N Z MHLANTLA
JUDGE OF APPEAL

______________________
X M PETSE
JUDGE OF APPEAL

______________________
D A VAN ZYL
ACTING JUDGE OF APPEAL

_____________________
K G B SWAIN
ACTING JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANTS:

Adv J G Bergenthuin S.C.

Instructed by:

Smith Stanton Inc., Mahikeng

Symington & de Kok, Bloemfontein

FOR RESPONDENT:
Adv. L G Nkosi‐Thomas S.C. (with her M H Masilo and M Z
Makoti)

Instructed by

Kgomo Mokhetle & Tlou Attorneys, Mahikeng

McIntyre & van der Post, Bloemfontein

FOR AMICUS CURIAE:

Adv. A Redding S.C.

Instructed by

Anton Bakker Attorneys, Pretoria

Symington & De Kok, Bloemfontein