Dean of the Law Faculty of the University of North West & others v Masisi

The respondent, Mr Masisi, obtained his B.Proc degree from the University of the North and later registered for an LLB degree at the University of North West (UNW). The UNW refused to give him academic credit for all the courses he had completed for his B.Proc degree, offering credit for only 50% of the courses. This policy was based on the UNW's General Academic Rules and section 18(2) of the Joint Statute of the Universities in the Republic of South Africa approved by the Minister of Education under the Universities Act 61 of 1955, which requires a minimum period of attendance at the degree-conferring university and stipulates that at least half of the courses must be completed at that university. Mr Masisi alleged that students who completed their B.Proc degrees at UNW received full credit for all courses when pursuing an LLB, while those from other universities only received 50% credit. He complained that this differential treatment constituted unfair discrimination contrary to the Promotion of the Equality and Prevention of Unfair Discrimination Act 4 of 2000. He approached the Equality Court with this complaint. Although the Minister of Education was initially cited as a party, the respondent indicated no relief would be sought against the minister, who then did not participate in the proceedings. No other universities were cited as parties.

• Whether the university's policy of granting credit for only 50% of courses completed at another university constituted unfair discrimination under the Equality Act
• Whether the Equality Court had the power to set aside statutory provisions and policy directives without affording the Minister of Education and other affected parties an opportunity to participate
• Whether it was competent for the Equality Court to decide issues beyond those identified at the directions hearing
• Whether affected parties (the Minister of Education, other universities, and HESA) should have been afforded an opportunity to intervene in proceedings that directly affected their interests
• Whether the procedural requirements for challenging the validity of legislation had been complied with

1. The appeal is upheld. 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 must serve a copy of the order and founding papers stating the relief sought on all interested parties including (but not limited to) the Minister of Education, The Council on Higher Education, Higher Education South Africa (HESA) and afford them an opportunity to join the dispute and make representations. 5. Any party so identified must respond within the time periods provided in Rule 6 of the Uniform Rules. 6. The Equality Court must take steps to ensure the dispute is determined as expeditiously as possible and may issue directions for the conduct of proceedings. 7. The costs of the proceedings in the Equality Court and in the Supreme Court of Appeal shall be costs in the cause.

Courts may not make orders declaring statutory provisions and policy directives invalid without providing relevant organs of state and affected parties an opportunity to intervene and oppose the relief sought. When litigation before the Equality Court (or any court) concerns the validity of legislation or policy that affects parties beyond those before the court, particularly organs of state responsible for such legislation or policy and other entities with a direct and vital interest in the outcome, those parties must be afforded an opportunity to participate in the proceedings. The principle of audi alteram partem (hear the other side) requires that parties with a direct, abiding and crucial interest in the subject matter of litigation must be given an opportunity to be heard before orders are made that affect their interests. This is particularly important where the order sought or made has implications for government policy and affects numerous institutions or entities not party to the proceedings. The proper joinder of interested parties is essential to ensure procedural fairness and the legitimacy of court orders, especially in matters involving challenges to the validity of legislation or delegated legislation.

The court noted that the parties might be well-advised to consider whether it is not in everyone's interest that the litigation be shifted to the high court (rather than the Equality Court) to obviate any further uncertainty, referring to the provisions of section 20(3)(a) of the Equality Act. The court also observed that the case is of vital importance to tertiary education in South Africa. The court described the policy justification provided by HESA for the joint statute requirement (that at least half the courses must be completed at the degree-conferring university): that this enables the university to have confidence that the student meets the standards it proclaims and on which its reputation rests. The court noted by way of comparison that in certain prestigious foreign universities, no recognition whatsoever is given to courses passed at other universities, presumably for similar reasons. The court pointed out that HESA's contentions were not evidence and that evidence in this regard was not presented in the Equality Court, nor were any representations made, and that the University of North West was very brief in its opposition and did not make submissions or present evidence on the issues raised by HESA. The court also observed that the order of the Equality Court went well beyond what was contemplated at the directions hearing, which was probably due to a lack of proper thought being given to whether the narrowed issues could viably be delinked from the statutory underpinning for university policy.

This case is significant in South African jurisprudence as it establishes important principles regarding procedural fairness in equality litigation that affects national education policy and statutory instruments. It emphasizes that when courts are asked to declare statutory provisions or delegated legislation invalid, especially when such declarations have wide-ranging implications affecting government policy and numerous institutions, the relevant organs of state and affected parties must be afforded an opportunity to participate in the proceedings. The case demonstrates the application of the principle established in cases like Jooste v Score Supermarket Trading (Pty) Ltd and Parbhoo and others v Gets NO that interested parties must be given an opportunity to be heard. It also reinforces the importance of proper joinder of parties in constitutional and administrative law matters, particularly in the context of education law and equality jurisprudence. The case highlights the intersection between equality rights and tertiary education policy in South Africa, and the need for courts to balance individual rights claims against broader policy considerations affecting the entire higher education system. It also provides guidance on the proper scope and exercise of jurisdiction by Equality Courts, particularly when dealing with challenges to legislation and policy that have far-reaching implications beyond the individual complainant.