Court rebukes university for playing Russian roulette with student

“Unconstitutional” is how judge Mbulelo Jolwana described Walter Sisulu University’s conduct in a judgment handed down recently after the university prevented a prospective law student from registering within the timelines stipulated by the university.

In his ruling, Jolwana hinted that the university was playing Russian roulette with Milela Mbana’s application. He had met all the criteria and followed the steps necessary to register for an LLB degree in 2023. The university sent him a conditional acceptance letter in February. He had three days to reply or his space would be “given to the next deserving student”.

Mbana then followed all the necessary steps, paid the registration fee and emailed proof of payment. He requested registration clearance, was cleared the same day, and could access the online registration portal. He then tried to register.

“His numerous attempts to submit his registration all failed as the registration portal indicated that the intake for the Bachelor of Laws degree programme was full,” Jolwana said.

Mbana argued that the university breached not only his constitutional rights to education but was also in breach of contract as he had complied with its conditions, yet it had already offered his space to another student.  

The university outlined the legal framework that authorised it to decide entrance requirements as well as student numbers. It drew attention to its right to admit or refuse admissions while considering its targets and capacity.

Jolwana was not convinced: “In my view, nothing turns on the provisions of [the relevant legislation] or the admission policy of the university to the extent that the university complies with the admission policy and a prospective student also complies with it.”

He further noted: “To increase the number of admissions, a number of initiatives were taken including increasing the number of admission letters issued to prospective students for the LLB course from 103 to 276.”

Though there were 276 letters, there were only 75 spaces available for the LLB programme, which is determined by the department of higher education and training as a part funder of the programme. So regardless of how many admission letters are issued, the university can only provide teaching to 75 students, or it is penalised by the department.

The university admits Mbana met the criteria and the contents of the admission letter but argued that the “letter is being misconstrued”. It said “he was required without delay to register via the applicant’s online registration portal for the degree because a delay in doing so would result in the course becoming fully subscribed. The online platform would then, once the course is fully subscribed, not allow him to register.” 

Jolwana took issue with the university not explaining “how it got to be that the course was fully subscribed”, despite giving him three days to respond. Any limitation or first-come first-served concerns could only apply after the three-day period had expired.

“This is because after expiry of the three-day period he would have lost the space allocated to him as he would have failed to act within the timelines expressly communicated to him.”

Jolwana also noted that the registrar can time the entire process and if Mbana was late, the registrar “should also have pointed out any lack of promptitude on the part of [Mbana]”. The university did not. 

The university disputed infringement on the right to education. The specific constitutional right concerns an obligation on the state to make further education progressively available. But Jolwana says the university is mistaken: “The unconstitutional conduct is not that of not admitting [Mbana] ... It is that of unlawfully preventing him from registering within the timelines that the university itself gave to him.” 

To succeed in its arguments, Jolwana held that the university would have to prove that Mbana’s acceptance was late, but it failed to do so.

In a particularly critical passage, Jolwana wrote that he hoped this was not indicative of a university prepared “to play Russia[n] roulette” with those seeking to escape poverty and improve their lives.

Jolwana ruled that the university must allow Mbana to register for an LLB and pay the costs. 

The university had not responded at the time of going to print to requests for comment.