IN THE HIGH COURT OF ESWATINI
JUDGMENT
In the matter Between: Case No. 160/2019
JUBILEE MAZIYA & OTHERS Applicant
And
THE REGISTRAR UNIVERSITY
OF ESWATINI Respondent
Neutral citation : Jubilee Maziya & Others v The Registrar University of Eswatini (160/2019) [2019] SZHC 234
Coram : M. Dlamini J
Heard : 18th October, 2019
Delivered : 29th November, 2019
Summary: The applicants lamented an increase of his tuition fee at the instance of respondent. They prayed that this court reviews and set aside such increase. Respondent denied any increase in tuition fees.
The Parties
[1] The 1st applicant is an adult male currently pursuing a diploma in Adult Education. He is in his first year. He points out that he also represents all his classmates in these proceedings. The respondent is said to be the Registrar of the University of Eswatini who is tasked with registration of applicants.
The Applicant’s case
[2] The applicants have asserted that the respondent has increased tuition fee for the academic year 2018/2019 without following the laid down procedures for increasing fees. They deposed in this regard:
“It is common knowledge that the respondent has increased the course fees by 400% (see annexure ‘D’) instead of the legal provision in the official E4 191.00 in terms of regulation 2.13 of the University of Eswatini calender 2018/2019. The respondent is violating the provisions as provided in “SG 1” A, “SG1” B, “SG2”, “SG3”, “SG4” and SG5. THE INCREASE OF THE MONEY AS STATED IN ANNEXURE “D” is illegal and provision of the latter provisions.”[1]
The Respondent’s defence
[3] The respondent disputed any increase in its tuition fee for the said academic year. They explained as follows:
“15.3 Over the past years, UNESWA has erroneously charged students studying towards the Diploma in Adult Education, the same tuition as students studying towards a Certificate in Adult Education. This was a genuine error. It has already been pointed out above that Certificate Courses are not billed at the same level as Diploma Courses.
15.3.2 On the contrary, a student studying for a Diploma in Adult Education in 2017/2018 academic year was paying E3, 810.00 which is the same amount that was paid by a student studying towards a Certificate in Adult Education.
15.4 Clearly, it was a genuine error that students studying for a Diploma were made to pay the same tuition as students studying for a Certificate.
15.5 The students who studied towards the Diploma in Adult Education in previous years benefitted unduly from this error. It was only befitting that the University takes steps to rectify the error.
15.5.1 to that extent, the University resolved that the continuing students who are enrolled for the Diploma in Adult Education in previous years and who had previously been offered a place on the basis of tuition fees equivalent to those of the Certificate in Adult Education, albeit erroneously, should continue paying those fees. Changing the fees for them could have repercussions as it may be interpreted as hiking the fees;
15.5.2 However, going forward, the error should be corrected. New entrants should be offered a place on the basis of the proper fee structure for the Diploma in Adult Education. To achieve this end, students should pay fees on the basis of the credits required for that particular programme. It was on those bases therefore that Applicant and other students in the Diploma in Adult Education Year 1 were offered a place to study the course based on the current tuition fees. Applicant and his classmates accepted the offer.”
[4] The respondent concluded:
“15.7 I therefore respectfully submit that it was reasonable for the University to correct its error. In doing so, it ensured that returning students who had contracted in terms of the erroneous tuition did not suffer any prejudice by result of an error that was not attributable to them. Applicant and his classmates are not in the same footing as those students. Applicant cannot approach this Court and seek for UNESWA to repeat the same error even when it has been identified and corrected.”
Adjustment
[5] I must point out that when the matter was first enrolled, applicants prayed for a number of orders. By the time the matter came before me on motion roll, the only prayer was that respondent’s decision to increase the tuition fees be reviewed and set aside.
Anomalies
[6] The citation of the parties as the applicant is somehow irregular. The parties are cited as Jubilee Maziya and Others. Against that there is the word “applicant”. At para 5.1 of the founding affidavit, it is deposed:
“5.1. The Applicant is a student representing all the Diploma in Adult Education year 1 students/applicant at the University of Eswatini. The Applicants are the Respondent students doing the Diploma in Adult Education year 1 mentioned in annexure “A”. The Applicant and the entire 25 students doing the Diploma in Adult Education year 1 are the applicants by virtue their capacity to bring this application.”
[7] Annexure A reflects a list of names of individuals and their signatures. There are no supporting affidavits attached to the founding affidavit indicating that the application finds support of the sixteen individuals. In fact one signature in respect of Nonhlakanipho Dlamini student number 151532 is missing.
[8] I must say the manner in which the other applicants were cited is irregular. I guess this is the reason respondent in its answer merely addressed the matter as if it was for Jubilee Maziya only. Respondent cannot be faulted for so doing.
[9] When the matter was argued before me, respondent’s counsel did not raise any issue on the manner in which the parties were cited although I noted during his submission on the merit that he did en passe pointed out that the respondent’s position was that there was only one applicant before court. Whatever the position, it is my considered view that I should proceed to deal with the merits of this matter. The reason being that the number of parties as applicant was not made an issue.
Issue
[10] Did the Respondent raise the tuition fees for the academic year 2018/2019? If yes, did they comply with annexure SG 5?
Determination
[11] I must commence by explaining annexure SG 5. Annexure SG 5, attached by the applicant(s) in the founding affidavit is a circular issued by PEU (Public Enterprise Unit) entitled “PEU Circular No. 1 of 28th March 2018. It is addressed to “All Chief Executive Officers of Category A Public Enterprises”.
[12] Clauses 2 of the circular stipulates:
“2. At its meeting held on 20th March 2018 (SM5253), SCOPE decided that all such proposed increases, except salaries and wages, that exceed 5.25% must be approved in writing by the responsible Minister after having received SCOPE’s approval.”
[13] It is common cause that the respondent is classified as category A Public Enterprise and therefore bound by the circular. It is not in issue that all former students pursuing diploma in adult education paid the sum of E4 191.00 for each academic year. The applicant(s) however were each compelled to pay the sum of E8 548.50 for the first semester and E7 714.50 for the second semester in the academic year 2018/19. This position is further evident by the respondent’s calendar for 2018/19. [2]
There is also a letter of offer to Jubilee Maziya which reflects tuition fee of E417.00 per score point.
[14] As already highlighted, respondent does not dispute the differentiation on the fees. It asserts that tuition fees have always been fixed at E417.00 on score sheet. However, when administration handled the matter, it committed a justus error such that all proceeding students were subjected to a lower fee. When it discovered the error it opined that it would prejudice already registered students if it imposed the initial fixed fees as per the calendar. Respondent then allowed them to benefit under the error.
[15] However, respondent submit further that it was duty bound to correct the error and this could be done to would be students. Jubilee Maziya is one of them.
[32] When I heard the matter on 8th October 2019, I ordered either party to file evidence that the fees have or have not been adjusted to the prejudice of the applicant(s). On the return date, Counsel for respondent filed the respondent’s calendar year for 2017/18 of which I am very grateful. The respondent calendar of 2017/18 put the matter to rest as it reflected:[3]
“”2. TUITION FEES: PART TIME
- (I) Undergraduate (IDE)
IDE per module E3 190.00
All programmes per year
(IDE) E13 640
(ii) Adult Education, Psychosocial
Support, Portuguese & French
(Certificate & Diploma)
Per Year E3 810
Per full course E1 250
Per Half course E625.00”
[16] The applicant(s) case falls under paragraph 2. (ii) as IDE Diploma. In brief Jubilee Maziya is to be subjected to tuition fee of E3 810.00 plus E1 250.00 for full course subject and E625.00 for each half course. It is difficult to make any calculation as applicant(s) did not depose to the courses. However, any increment ought not to be beyond 5.25%. Again this court is incapacitated to make any calculations following that the applicant(s) failed to divulge their courses.
[17] From the above, anyone should however be able to compute the fees due. I make no order as to costs.
_________________
M. DLAMINI J
For the applicant : L. N. Dlamini of S.A. Nkosi Attorneys
For the respondent : Z. Shabangu of Magagula & Hlophe Attorneys
[1] Page 7 para 8.1 of the book of pleadings
[2] See page 13 of book of pleadings
[3] Page 49 of calendar 2017/18
