A UFH education student takes the university to court over failed module and wins

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The court ruled in Mbali Silimela's favour.
The court ruled in Mbali Silimela's favour.
Beau Lark/Corbis/VCG

He is determined to be a teacher and now he has taught the university he is attending a lesson they will not soon forget.

Mbali Silimela was a final year education student at the University of Fort Hare. He approached the Bhisho High Court, without a lawyer, on an urgent basis, asking it to review a decision made by the university’s senate.

The senate did not capture his actual marks for the EDW 401 module, he told the court.

 In his founding affidavit, Mbali says the application is for the review and setting aside of a decision taken by the Senate of the University on 2 February 2023 to withdraw or revoke (his) EDW 401 marks of 57%, which had been conferred on him by (the) Faculty of Education and Faculty board of the first respondent on 12th January 2023.

In the alternative, he contends that the senate’s decision on 2 February 2023, in terms of which his marks for EDW 401 was withdrawn or revoked, be declared of no force and effect.

Further, in the concluding paragraphs of his founding affidavit he requests an order directing the University to finalise the correction of his marks and to review and set aside the decision of the Senate for rejecting the correction of his marks for the EDW401 module.

Mbali says he exhausted every avenue open to him within the institution and that is why he turned to the courts.

Listening to the case, judge Belinda Hartle said the University’s unyielding attitude however appears to be that since the applicant failed to meet the deadlines for his respective course work to be filed on time, he automatically forfeited his right to have them assessed, even if an internal process in this instance in fact resulted in him being condoned by his own faculty.

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“The University wants the court to ignore this important feature of the applicant’s case. It was important for me to understand why I should ignore it, but the University’s answering affidavit has not provided much insight in this respect.”

The judge says she believes that there is merit in the fact that Mbali’s lecturer for the module at least allowed his course work to be marked and that the Faculty thereafter earnestly motivated for his corrected mark to be accepted despite his breach of the University rules.

“The University agrees that the correction had to be officially approved according to the rules and practices of the University, and thus it ended with the Senate so the Senate must therefore give proper consideration to his unique request based on the essential features of his case that was placed before it.”

Professor Vusumzi had recommended that Mbali’s marks be increased to 57% from 23%.

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“The student reported that he had a challenge uploading the video. By the time he submitted the video, the system was closed, so the marks could not be captured. The Faculty requests that 23% which was initially captured, be changed to 57%.

“The Faculty supports the correction of marks for the student because he is a final year student in the old BEd qualification that he’s being phased out. According to the records the student has completed all the requirements for BEd programme except for the Teaching Practice (EDW 401), which is a compulsory module.”

Judge Hartle said she was satisfied that the Mbali had made out a case for judicial review.

“In the sense that the Senate has failed to take a critical decision which it was obliged to following the faculty’s recommendation put before it that (Mbali’s) late mark of 57% should be approved. The enormous prejudice to (Mbali) thereby which he has for a long time coming sought to address informally with the University (very volubly I might add) requires that the decision be taken with great alacrity.

“The University, through its responsible structures, is directed within 5 days of this order to properly consider the recommendation of (Professor Mncube), read together with all the information already furnished in support of (Mbali’s) request to have been condoned for his late submissions of the practical training components of the EDW401 module, that his late corrected mark of 57% in respect of the module be accepted and captured on the marks system, and to make a decision to approve it or not.

“If the decision arising is not one of approval of the Faculty’s recommendation, the decisionmaker is to provide adequate written reasons to the applicant for his/her/its decision adverse to his interests at the same time it publishes its decision.”

The university was the directed to pay Mbali’s costs of the application.

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