IN THE HIGH COURT OF SWAZILAND
Held at Mbabane Case No.: 1195/2017
In the matter between
NOMPHUMELELO TSABEDZE Applicant
THE MINISTER OF LABOUR & SOCIAL SECURITY 1ST Respondent
THE SCHOLARSHIP SELECTION BOARD 2ND Respondent
THE P.S. MINISTRY OF EDUCATION 3RD Respondent
THE SWAZILAND GOVERNMENT 4TH Respondent
THE ATTORNEY GENERAL 5TH Respondent
Neutral Citation: Nomphumelelo Tsabedze v The Minister of Labour and Social Security And 4 Others (1195/7  SZHC 46 ( 20March 2018)
Coram: Hlophe J.
For the Applicant: Mr L.N. Dlamini
For the Respondent: Mr H. Sibandze
Date Heard: 02nd March 2018
Date Judgement Delivered: 20th March 2018
Application Proceedings –Proceedings to have the application for scholarship dealt with in terms of the Policy on priority areas for Preservice Tertiary Education and Training (PTET) as read with the Study Loan and Scholarship Agreement Order of 1973 made by applicant –Order granted by consent as it was unopposed –The two documents had only one effect namely the grant of the scholarship sought –After months of grant of order, applicant seeks almost the same order complaining of non-compliance with previous order by the Respondents –Court to approach matter as an application for interpretation and enforcement of its previous order–Court orders immediate compliance with order of Court granting applicant scholarship.
 On the 22nd August 2017, whilst acting as Duty Judge, I heard and granted an application brought under a certificate of urgency in terms of which the applicant sought the following orders:-
1.1. That the Rules of the above Honourable Court pertaining to forms, time limits, and service of process be dispensed with and that the matter be treated as one of urgency.
1.2. That the noncompliance with the Rules of Court be abandoned.
1.3. That an order be issued compelling and directing the First and Second Respondents to comply with Priority Areas for Pre-Service Tertiary Education And Training (PTET) as read with the Study Loan and Scholarship Agreement Order 1977.
1.4. Costs of (the) application.
1.5. Granting (applicant) such further or alternative relief.
 I granted the application by the consent of both counsel appearing, namely Mr L.N. Dlamini for the Applicant and Mr H. Sibandze for the Respondents. They both indicated that owning to the consensus they had reached the application had to be granted. No special meaning to the consent order was given nor was any explanation made, just as no conditions were given attaching to the order. It is true that all the allegations made by the applicant had gone unopposed in as much as no opposing papers had been filed by the Respondents. I was therefore in no doubt that the effect of the order granted was in the circumstances the grant of the scholarship sought by the applicant as envisaged in annexures “B” and “C” to the application, with only the modalities on how that was going to be achieved having to be put in place.
 This was the position because in his papers the applicant had made the case that whilst she had completed her high school education in 2009, she had not been able to secure a space at any of the tertiary institutions that are available in the country. This state of affairs she said came to an end in 2015 when she was admitted at the Southern Africa Nazerene University (SANU) in Manzini where she was to study towards a Degree in Bachelor of Science in Nursing and Midwifery.
 She says that when she applied for a scholarship, she was unsuccessful because her application form was never accepted by the Respondents, with her being told it was made after the lapse of five years since her completing her high school education. She had however managed, amidst an obvious struggle, to raise private resources and enrolled at the said institution. She passed her first year. At that point she said that she once again approached the second respondent to submit an application form for a scholarship towards the balance of her remaining years of study. Again her application form was not accepted for the same reasons as before. She said that she again managed to raise funds and completed her second year with positive and favourable results being attained by her. At this point her prospects of continuing with her education had become even bleaker. She said she at this point applied for scholarship to the Second Respondent and by means of a letter. She at least expected to be called for an interview where she thought she would be able to put her peculiar facts across and be heard at least. This did not happen because at a certain date, she received a call from a cell number she remembered vividly, which informed her that there was no way her application was going to be entertained because she had brought her application after five years of her completing high school.
 It was as a result of these developments that she instituted the application referred to above. She picked an issue with not being given a hearing at all instead of being telephoned and told that her application was not going to succeed. The complaint was obviously that this was done without her peculiar circumstances being considered which she found to be unacceptable. She contended that there was no basis for her being told that her application would not be entertained merely because of the number of years she had taken to apply after completing school. This was because the five year period in question had lapsed because she was failing to obtain a place to further her tertiary education from any of the existing institutions and not out of choice or out of her own making. It stands to reason that if what she says is correct, it cannot be equated to that of someone who deliberately failed to apply earlier who only chose to apply after the lapse of five years. To treat these cases alike could easily be viewed as an act of irrationality on the part of the Respondents and would be downright unfair to an applicant in the position of the current applicant.
 Her case as understood from the unopposed papers was simply that these situations would have had to be treated differently and that there was a possibility her application could be allowed if the merits of it were properly considered with her being allowed to present her case as she should be able to persuade the board to yield to her request given its peculiar circumstances. She was apparently contending that a blanket refusal to grant her scholarship simply because she had applied for it after five years was unfair in a case where the 5 year period lapsed through no fault of hers. The failure to hear her therefore, she said had amounted to a violation of section 33 of the constitution which enjoined any authority that exercises administrative power, to hear and treat any person who appeared before it justly and fairly.
 She had argued that because of this failure by the Respondent to hear her, this court should hear her matter and order that she be granted a scholarship in terms of annexures “B” and “C” to her application. On the face of it no complication was apparent from the application, so much so that even though the application was in the form of a review, there would be nothing wrong with this court being the one that substituted its decision for that of the Second Respondent in the event it reviewed and corrected the decision being challenged. See in this regard what is stated in Herbstein and Van Winsen’s The Civil Practice of The Supreme Court of South Africa, 4th Edidtion, Juta and Company, Page 959, where the position is captured as follows:
“Although the Court will, in the case of a successful review, generally refer the matter back to the particular body entrusted by the legislature with certain or special powers rather than make the decision itself, it will not merely do so when the end result is a foregone conclusion and a reference back will only waste time, when a reference back would be an exercise in futility or where there are cogent reasons why the court should exercise its discretion in favour of the Applicant and substitute its decision for that of the respondent.”
 Annexure “B” to the application, which was one of the documents backing it comprised a list of universities recognized by government to which students are sponsored together with certain prioritized courses offered in such universities. In terms of this list referred to as the Priority Areas for PTET award, the course being studied by the applicant at the University concerned was eligible to be sponsored by Government. In fact according to the applicant she was studying with colleagues who were sponsored by the Second Respondent for the same course as her at that University.
 On the other hand, annexure “C” was merely a copy of an existing statute, known as the Study Loan and Scholarship Agreement Order 8 of 1977. Of significance is that this statute, after setting out the title and citation of the Act concerned in Section 1, and the interpretation of the words used in it in Section 2, provides what it calls the deemed terms of any scholarship agreement by the Swaziland Government in Section 3, whilst if further provides that no agreement of sponsorship by any applicant in Section 4 can be contracted outside the provisions of Section 3. In short the statute in question sets out what would be expected in the case of any student sponsored by the Swaziland Government and the fact that no sponsorship agreement involving the Swaziland Government can be concluded outside this statute.
 Both documents say nothing on their face about a requirement that a sponsorship can not be granted after five years of the applicant’s finalizing his schooling or his high school education. Indeed when the order was granted by this court on the 22nd August 2017, the order was taken to be an end in itself and not merely as a means to another end; which is to say, the applicant was being granted a scholarship and not that it was allowing that, she be heard and once heard she was to be denied scholarship. This was going to be very unfair to the Applicant if the application were to be returned to the 2nd Respondent for it to simply pronounce an the order she had always wanted to pronounce except that this time she would be doing it with the sanction of the Court. I do not think that any Court can ever work like that.
 It would appear that the Respondents thought that way if they are genuine because they now say that they thought the order was allowing them to start the process afresh, call the applicant to appear before the Board and there at, reject her application, informing her that she had made her application after five years; a decision they had already made when they rejected her application forms including her application by letter as manifested in the cellphone call referred to above. I note that even in their affidavits opposing the current application they give no deep and fully considered decision than to simply say that she had applied after 5 years of her completing school which I have hinted if effected on its own without other considerations it could be found to be irrational and unfair.
 It was upon realizing this that the applicant instituted the current interlocutory proceedings where he sought the following orders:-
1. Compelling and directing the First and Second Respondents to comply with the Court Order that was issued by His Lordship Justice Hlophe of the High Court of Swaziland on the 22nd August 2017 forthwith; compelling and directing the First and Second Respondents to comply with the Priority Areas for Pre-Service Tertiary Education and Training (PTET) as read with the Study Loan and Scholarship Agreement Order 1977.
2. Costs of this application in the event it is opposed ; and
3. Further and/or alternative relief.
 Although couched in a somewhat confusing manner, one thing is certain, what is now sought is an order enforcing the previous order by compelling the First and Second Respondents to comply with the Order issued by this Court on the 22nd August 2017. The annals of the said order have been discussed above in some of the foregoing paragraphs. In other words the applicant seeks to have an order clarifying and enforcing its previous order.
 In his papers, the applicant seeks the order enforcing the previous one on the grounds that it was improper for the Respondents to, after that order had already issued, seek to recall the applicant to reopen the question whether or not to grant him the said application. It contended that the matter had already been decided by the court which had ruled, albeit with the parties’ consent, that the applicant be awarded scholarship on the basis of the two annexures to the earlier application. The question of the propriety of the grant of the scholarship by the court having been decided, the Second Respondent had no power to decide that issue as it had already been decided by the Court following the consent of the parties. Put differently that issue having been decided by the Court, it could not be reopened by the Respondents in the manner they sought to do. To this extent there was sought an order compelling the Respondents to comply with the Court’s Order of the 22nd August 2017, which according to the Applicant and as confirmed by this court, was compellling the Respondents, through their own consent to award the Applicant a scholarship for the balance of her remaining years of study towards the degree course she was pursuing.
 Whatever the merits or demerits of an order compelling a party to comply with an order of court in the manner done by the Applicant, it is clear to me what it is the applicant is effectively saying. She is saying that the Respondents are refusing to comply with the order of this court as issued on the 22nd August 2017 and that they seek to give their own meaning to it which is different from that apparent when the unopposed order was issued. Short of hitting it on the head, she is saying that a disingenuous scheme is being put in place by the Respondents to frustrate an order of this court.
 I must say I agree with the Applicant that their complaint is simply that the Respondents are refusing to comply with an order of this Court and that the applicant is entitled to an order compelling compliance with the said order. Even though I believe it could have been sought differently, there is no doubt the applicant sought the order question through first giving the Respondents an opportunity to purge their contempt before seeking to have an order committing the Respondent for contempt of court.
 Be that as it may, I am convinced that the application of the applicant and its effect is very clear and it causes no prejudice to the Respondents at all. In fact to put it beyond doubt, I should say in the order I issue if I agree with the Applicant, that the Respondents be and are hereby compelled to comply with the order of this court issued on the 22nd August 2017 by awarding the Applicant a scholarship for the balance of the period remaining in the degree programe she is pursuing. In that sense whatever forms or documents may need to be signed by the applicant and the Respondents or their representatives would have to be so signed to give effect to this order.
 Commenting in passing I would say that it is imperative for a body like the Second Respondents to ensure that in carrying out its mandate it does not appear to be defeating the noble idea of the state having to assist its qualifying but destitute citizens to obtain education through the scholarship programme by slovenly adhering to a fisced principle which defeats the ideal of the policy. Whilst I am not deciding the propriety or otherwise of the five year limitation in this matter, which I acknowledge may be a matter for some other day in a different matter, this court had already decided the question of the scholarship applied for by the applicant following the consent by the parties and cannot today reopen that issue as it has no power to do so. In fact such cannot be done without tinkering with those well founded principles of our law such as res judicata and the functus officio principle. On these principles particularly the functus officio one it may help to turn to the Firestone South Africa (PTY) LTD Vs Genticuro A.G.1977 (4) SA 298 at 306-307 Judgement, where the position was put as follows:-
“The general principle, now well-established in our law, is that once a court has dully pronounced a final judgement or order, it has itself no authority to correct, alter or supplement it. The reason is that it thereupon becomes functus officio; its jurisdiction in the case having been fully and finally exercised, its authority over the subject-matter has ceased. See West Rand Estates Ltd V New Zealand Insurance Insurance Co. Ltd 1926 AD 173 at pp 176, 178, 186-7 and 192; Estate Garlick Vs Commissioner of Inland Revenue 1934 AD 499 at p. 502.
See also the case of Sibusiso Bonginkhosi Shongwe Vs Rex Criminal Appeal Case No. 26/2015  SZSC 04.
 It seems to me that people like the applicant who try to pull all stops to better themselves in the evident manner she had done, deserve to be assisted and not frustrated. I am sure the amount of money she is requesting as an educational loan is not much when viewed at from the remaining number of years in her academic pursuit. Consequently I make the following order:-
1. The Applicant’s application succeeds.
2. The Respondents be and are hereby ordered to comply with the Order of Court issued on the 22nd August 2017 by forthwith granting or awarding Applicant a comprehensive scholarship to cater for the balance of the remaining period in her academic pursuit of a Degree in Nursing and Midwifery.
3. The Respondents are to pay the costs of these proceedings jointly and severally one paying the other to be absolved.
N. J. HLOPHE
JUDGE – HIGH COURT