Mohuba v University of Limpopo

The appellant, Mr Dinkwanyane Kgalema Mohuba, was employed as Executive Director for Marketing and Communication at the University of Limpopo (the respondent). In August 2016, he enrolled as a doctoral student for a Doctor of Commerce degree. His thesis proposal was approved by the Central Higher Degrees Committee on 13 June 2017, and on 12 March 2018, the Committee recommended that the degree be awarded to him. On 14 March 2018, the university received a complaint from a Senate member expressing concern that the appellant, who was employed full-time at the university, was recommended for the award after being registered for less than two years, potentially breaching the university's statutory requirements. After receiving similar complaints and conducting an investigation, the university refused to confer the degree on the appellant and terminated his registration as a doctoral student on 5 October 2018. The appellant instituted action on 24 July 2019, claiming specific performance of what he alleged was a tacit contract between him and the university, seeking an order directing the university to confer the degree on him.

• Whether the relationship between a university and a student is contractual or administrative in nature
• Whether the university's refusal to confer the degree constituted administrative action requiring review under PAJA rather than a claim for specific performance
• Whether the termination of the appellant's registration precluded the university from conferring the degree
• Whether a separation order in terms of rule 33(4) of the Uniform Rules of Court was appropriate in the circumstances

The appeal succeeded. The order of the high court upholding the special plea and dismissing the appellant's claim was set aside and substituted with an order that the issues raised in the special plea are to be determined at trial. The matter was remitted to the high court for trial. Each party was ordered to pay its own costs occasioned by both the hearing of the special plea in the high court and the appeal.

The binding legal principles established by this case are: (1) A special plea is not an appropriate procedural mechanism to resolve questions regarding the nature of the relationship between a student and a university where those questions are interwoven with evidence to be led at trial; (2) A separation order in terms of rule 33(4) of the Uniform Rules should not be granted where the issues to be decided are inextricably linked and the separation would not facilitate the convenient and expeditious disposal of the litigation; (3) Where a court accepts that a relationship is contractual in nature, it must dismiss a special plea that argues the matter is purely one of administrative law, and proceed to consider the claim on its merits; (4) Whether a decision by a university amounts to administrative action that must be set aside is an issue that may need to be considered in light of all facts proven at trial.

The Court made important non-binding observations about the nature of the relationship between a student and a university. The SCA noted that this relationship "is not straightforward" and "cannot be characterised as one that is either entirely of a private law or public law nature". The Court stated that "there appears on the face of it, to be elements of both" private and public law. The Court cited with approval Sibanyoni v University of Fort Hare, Mkhize v Rector, University of Zululand and Lunt v University of Cape Town and Others in support of this proposition. The Court also observed that "what this means for the appellant's cause of action is a matter best left trial, when all the evidence has been led", indicating that the characterization of such relationships may be fact-dependent. The Court further noted, without deciding, the requirements under section 65B of the Higher Education Act 101 of 1997 and various university rules regarding the conditions under which degrees may be conferred.

This case is significant for clarifying the procedural approach courts should take when the nature of the relationship between a university and student is disputed. It confirms that the relationship between a student and a university is not straightforward and contains elements of both private law (contract) and public law (administrative action). The judgment provides important guidance on when separation orders under rule 33(4) of the Uniform Rules are appropriate, holding that they should not be granted where issues are inextricably linked and would not facilitate convenient and expeditious disposal of litigation. The case illustrates that whether a university decision constitutes administrative action requiring review under PAJA is a question that may need to be determined in light of all facts proven at trial rather than on a special plea. It contributes to the developing jurisprudence on the interface between contract law and administrative law in the context of higher education institutions.