Harrielall v University of KwaZulu-Natal

Ms Niekara Harrielall, the appellant, applied to the University of KwaZulu-Natal (the respondent) for admission to study for an MBChB degree in 2015, but her application was unsuccessful. She registered and completed a Bachelor of Medical Science (Anatomy) degree during 2015 to enhance her prospects for admission to the MBChB degree in 2016 within the category described as 'Mature Students' in the respondent's admissions policy. Her application as a mature student for the 2016 academic year was also unsuccessful. She launched an application before the KwaZulu-Natal Division of the High Court, Pietermaritzburg seeking to review and set aside the decision of the respondent on grounds that it had failed to consider or apply its own admissions policy in refusing her application. The respondent's admissions policy provided that mature students would comprise 20% (40 students) of the class, divided into three categories (3a, 3b, and 3c). Category 3a provided that 25% (10 students) would be from an "open competitive category" for candidates who had completed matriculation, exceeded minimum standards for entry, and had done a year or more of a degree course at a recognized South African university with outstanding results. The High Court dismissed the application with costs.

• Whether the respondent failed to consider the appellant's application or apply its own admissions policy in refusing the appellant's application for admission to the MBChB degree program
• Whether a new ground of review not raised in the founding affidavit could be raised for the first time on appeal
• Whether the respondent's admissions policy was ambiguous or inconsistent between different versions (Annexure D vs Annexure SC3)
• Whether costs should follow the result or whether there were special circumstances justifying a departure from the general rule

The appeal was dismissed with costs. The order of the High Court dismissing the application with costs was upheld.

An applicant seeking judicial review of an administrative decision under PAJA must set out all grounds of review in the founding affidavit. A new ground of review cannot be raised for the first time on appeal where it was not properly pleaded in the founding papers. It is incumbent upon an applicant to make out their case in the founding affidavit. Where an applicant seeks to review an administrative decision, the applicant should utilize the procedures under rule 53 of the Uniform Rules to obtain the administrator's reasons for the decision and relevant documentation forming part of the record, which enables proper formulation of the grounds of review.

The majority observed that the issues in the case could have been avoided if the appellant had utilized rule 53 procedures at the outset to obtain the respondent's reasons and documentation. Interim relief could have been sought to restrain the respondent from finalizing admissions pending the review. The need for changes to the appellant's challenge during litigation could thereby have been avoided. The dissenting judgment by Molemela AJA observed that there were material discrepancies between Annexure D and Annexure SC3 of the admissions policy, with Annexure D being more inclusive of students from diverse educational backgrounds (including non-health-related degrees) while Annexure SC3 was more exclusionary. The dissent noted this ambiguity was prejudicial and undermined the purpose of section 37(3) of the Higher Education Act. The dissent also observed that mulcting a 19-year-old student of modest means with costs in circumstances where the litigation raised matters of broad concern regarding access to education might have a chilling effect on access to justice, and that section 8(1)(f) of PAJA requires costs to be determined in a manner fair to both parties. The majority responded to the dissent noting that both parties accepted on appeal there was no material difference between the annexures, and that other grounds for departing from the costs rule were not raised by the appellant and the respondent had no opportunity to address them.

This case is significant in South African administrative law for establishing that: (1) An applicant seeking to review an administrative decision under PAJA must properly formulate all grounds of review in the founding affidavit and cannot raise new grounds for the first time on appeal. (2) Rule 53 procedures should be utilized in review proceedings to obtain the administrator's reasons and record of decision-making, which enables proper formulation of grounds of review and avoids the need to change the basis of challenge during litigation. (3) The case illustrates the strict approach courts take to applications under PAJA where the basis of the challenge changes during litigation, particularly where new grounds are raised on appeal that were not pleaded in the founding papers. (4) On costs, the case demonstrates the general rule that costs follow the result applies even in matters concerning access to education, absent constitutional issues that would trigger the Biowatch principle. The dissenting judgment highlights ongoing tensions about when special circumstances justify departure from the general costs rule, particularly in matters involving students of modest means challenging university administrative decisions affecting access to education.