---

IN THE KWAZULU-NATAL HIGH COURT, DURBAN

REPUBLIC OF SOUTH AFRICA

CASE NO: 5347/2012

DATE: 24 JANUARY 2014

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the alternative, the applicant contends that the Senate’s decision on 2 November 2011, in terms of which her degree was withdrawn, be declared of no force and effect.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.2^nd 850, 852 (Ohio 1986). Against this standard, as the applicant has contended, is whether a university can be bound to the conferral 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 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 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

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.

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 2004. 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 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 deliveredThe 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

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.

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 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 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 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 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 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.

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 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 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.

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.

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 (III. 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 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 2012 [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 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.

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.

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, 2^nd 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 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 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 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 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] ZACC 2; 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

“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 amid 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 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 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 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:

'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 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, 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] ZACC 3; 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 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 13^th 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 academic standards into question and harm those who rely on the certification which the degree represents. "

53. In Crook v Baker [1987] USCA6 883; 813 F.2d 88 (6^th 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 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

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

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

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

---