Court dismisses UFH's application for leave to appeal - 'It would be tantamount to flogging a dead horse'

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The winning team, advocate Amangile Maduma, Mbali Silimela and Lwazi Dekeda.
The winning team, advocate Amangile Maduma, Mbali Silimela and Lwazi Dekeda.

One small step for man, one giant leap for Mbali Silimela.

Mbali was a student at the University of Fort Hare and he was studying towards a Bachelor of Education.

This year, he took the university to court because he was not given the marks he thought were due to him because a lecturer had not marked his assessment on time. 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 bone of contention is that, 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 university on 12 January 2023.

The court ordered the university to review their processes and fix his marks.

When they didn’t, he then returned to court backed up by his new attorney Lwazi Dekeda. Presiding judge Nozuko Mjali found that the senate misdirected itself as to what it was required to do in terms of the order.

“Explicit from the papers is that the late of submission of the Mbali’s 57% mark was not of his own doing but was due to the lecturer, Mr Macanda’s dilatory conduct. Common cause to the parties is that the decision to condone the applicant’s late filing of work was granted on 8 December 2022, a period of five days before the closure of the submission of the marks into the system on 13 December 2022.

“Macanda only marked the applicant’s work on 11 January 2023. This was after a lot of persuasion through a number of emails from Mbali. By then, the entry of marks into the portal had closed and could only be done with the permission of the senate. Had Mr. Macanda acted timeously, there would be no need for the approval of senate for the entry of the altered applicant’s mark into the system.”

Read more | 'I wish I could throw my phone away' - UFH student who can't graduate today

On 9 May, the court handed down a ruling that directed the university to add Mbali's name to the list of graduates.

The university then filed a notice for an application for leave to appeal the judgment that had compelled them to put Mbali’s name on the graduation list for this May.

Mbali’s name was not added on the list, and he was unable to graduate.

Judge Mjali has heard the university’s application for leave to appeal and has dismissed it with costs. They based their application on 16 points which they had a problem with from judge Mjali’s judgment.

“I have fully considered the submissions of (UHF), but I am not persuaded that there is a reasonable possibility that another court could come to a different conclusion. The issues raised in this application do no more than rehashing the (UFH’s) stance in their opposition of (Mbali’s) review application.

“To grant leave to appeal in an unmeritorious matter, clogs the roll and thus prevents access to justice. It all comes at a cost to (Mbali) – both financial and emotional due to the delaying in the completion of this matter. It would be tantamount to flogging a dead horse, a wastage of time and judicial resourses as well as prolonging the agony for (Mbali). That is exactly what our courts frown upon. Under such circumstances, leave to appeal cannot be granted and ought to be refused,” she says in the judgement.

Read more | Student suing Fort Hare says he ‘never enjoyed my time as a student at UFH’

Mbali could not be happier with the outcome from the court.

“I am happy,” he tells Drum.

“They have threatened to take the matter to the SCA, we do not know how true that is. But that’s fine. For now, we celebrate this victory. Le weekend izoba nkulu, kakhulu futhi, hayi kancane (this is going to be a great weekend).

“I am no longer interested in graduating at Fort Hare, I just want my certificate. I will later do my honours at a different institution and hopefully there I will get the opportunity to walk across a stage for graduation. My legal team is writing a letter which they will send to Fort Hare by the end of the day, asking them to give me my certificate no later than Wednesday.”

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