Hamilton Mupandenyama & 92 Others v Higher Education Examination Council and Kwekwe Polytechnic

The 93 applicants were final year students at Kwekwe Polytechnic who sat for Higher National Examinations Council (HEXCO) National Certificate examinations in Electrical and Automotive Engineering in March-April 2019. The respondents withheld their examination results based on suspicion that the examination paper had been leaked and students had unauthorised access to it. On 23 April 2019, some applicants were interviewed by HEXCO investigators. On 4 June 2019, some students received text messages advising they would need to re-write the examination. The respondents produced two investigation reports finding: (1) for the Diesel Plant Fitting paper, 6% of candidates had responses similar to the marking guide format; (2) for the Electrical Engineering papers, between 8-29% of candidates (depending on the subject) had responses similar in format, presentation and phraseology to the marking guide. The investigation reports concluded there was illegal access to examination materials. Some examiners had also incorrectly awarded full marks for wrong workings. At an examination ratification meeting on 16 April 2019, some individual candidates found with materials or caught cheating in other examinations were disqualified.

• Whether the respondents' decision to withhold examination results was illegal
• Whether there was proportionality in the respondents' decision
• Whether the respondents' decision was substantively and procedurally fair
• Whether the respondents complied with section 68 of the Constitution requiring lawful, reasonable, proportionate, impartial and procedurally fair administrative conduct
• Whether the respondents complied with section 3 of the Administrative Justice Act requiring administrative authorities to act lawfully, reasonably and in a fair manner
• Whether the applicants were afforded the audi alteram partem principle (right to be heard)

1. The Respondents are directed to release the Applicants' HEXCO National Certificate examination results in Electrical and Automotive Engineering sat in March/April 2019 within 48 hours of service of the order. 2. The Respondents are interdicted from making the Applicants re-write the HEXCO National Certificate examination in Electrical and Automotive Engineering. 3. The Respondents are to pay costs of suit, jointly and severally, the one paying the other to be absolved (ordinary costs, not on attorney-client scale).

An administrative decision to withhold examination results on suspicion of cheating is unlawful, unreasonable and unfair when: (1) the administrative authority fails to afford each affected person an individual opportunity to be heard before making the decision (the audi alteram partem principle); (2) the decision applies blanket sanctions to all students when specific offenders have been identified and could be dealt with individually; (3) the authority fails to provide adequate notice, reasons, and opportunity to respond to specific evidence relied upon; (4) the decision is disproportionate to the aim sought to be achieved, using more drastic means than necessary; (5) the decision lacks a rational foundation and is applied inconsistently without justification. Section 68 of the Constitution and section 3 of the Administrative Justice Act require administrative conduct affecting persons' rights, interests or legitimate expectations to be lawful, prompt, reasonable, proportionate, impartial and both substantively and procedurally fair. Every person affected by administrative action has the right to be heard individually, not through proxies or samples.

The court made several non-binding observations: (1) The court noted that the respondents were motivated by a desire to protect the integrity of the examination system, which justified declining to award costs on an attorney-client scale despite the opposition lacking merit; (2) The court observed that in numerical or technical subjects there is little room for disparity in language compared to essay-based subjects like Law or History, which was relevant to assessing whether similarity in phraseology to marking guides necessarily indicated cheating; (3) The court remarked that the principle of proportionality requires not using "a sledge hammer to kill a fly" - administrative bodies must not deploy more heavy-handed means than necessary to achieve their objectives; (4) The court noted that without reasons being given for a decision, it is improbable or difficult to determine how the ultimate decision was reached.

This case is significant in Zimbabwean administrative law for reinforcing the constitutional and statutory requirements for fair administrative action in educational settings. It clarifies that administrative bodies dealing with examination irregularities must: (1) exercise their powers proportionately by targeting only those individuals reasonably suspected of wrongdoing rather than applying blanket sanctions; (2) afford each affected person an individual right to be heard, not merely a sample of affected persons; (3) provide adequate notice, reasons, and opportunity to respond before making adverse decisions; (4) act rationally and consistently in their decision-making. The judgment emphasizes that protecting examination integrity, while important, must be balanced against students' constitutional rights to fair administrative action. It demonstrates how courts will scrutinize administrative decisions affecting educational rights to ensure they meet constitutional and statutory standards of lawfulness, reasonableness, proportionality and procedural fairness.