IN
THE HIGH COURT OF SWAZILAND
Civ.
Case No. 1605/94
In
the matter between:
THULANI
RUDOLF MASEKO 1st Applicant
BONGANI
MARTIN MASUKU 2nd Applicant
VINCENT
DLAMINI 3rd Applicant
BONGANKOSI
NTSHANGASE 4th Applicant
MUSA
DLAMINI 5th Applicant
VELAPHI
DLAMINI 6th Applicant
LINUS
MAVIMBELA 7th Applicant
And
THE
UNIVERSITY OF SWAZILAND 1st Respondent
THE
VICE-CHANCELLOR OF THE UNIVERSITY
OF
SWAZILAND 2nd Respondent
CORAM :
Hull, CJ,
FOR
APPLICANTS Mr. L. Mamba
FOR
RESPONDENTS Mr. J. Vilakati
Judgment
(14/10/94)
This
matter turns on the construction of Article 4.2 of the constitution
of the Students' Representative Council of the University of
Swaziland.
The
article has to do with the annual election of students to the
Students' Representative Council. The second paragraph of the article
is worded in the following way:
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"4.2.
Any full time student, except final year students, residing on each
Campus shall be eligible to be elected to the SRC."
The
issue, simply, is what the expression "final year students"
means.
Although
the following facts are not in every respect set out in the
affidavits filed in this matter, they are not in dispute.
Elections
to the Students' Representative Council are, under Article 4.1, to be
held every year in the last week of March. The academic year for the
University commences every August and ends in the following May. The
seven applicants were in March of this year full time students, each
in his third academic year of study for a degree that in the ordinary
course takes four years to complete. In April, they were declared to
have been elected to the Students' Representative Council in the
elections that fell to be held in March 1994. Thus, at the time of
the elections, none was in his final year of study.
The
University has nevertheless declined to recognise the applicants as
duly elected members of the Students' Representative Council. It
contends that, at the time of the elections, they were "final
year students" within the meaning of Article 4.2. and,
accordingly, were not eligible to be elected.
The
applicants take a different view. They maintain that they were not
final year students at the time of their election. They seek
therefore a declaration that they have been elected lawfully as
members of the Students' Representative Council and an order that the
University and its officers recognise them as such.
At
the hearing of this application, all parties proceeded on an
assumption that the constitution of the Students' Representative
Council has been duly promulgated. In other words, there has been no
issue, here, as to the validity of the constitution. Section 24 of
the University of Swaziland Act, 1983 (Act No. 2 of 1983) provides
that there shall be a Students' Representative Council which shall be
constituted in accordance with the Statutes of the University. I
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proceed
on the basis that this has been duly done. Under section 15 of the
Act, power has been delegated to the Council of the University to
make Statutes. The constitution is accordingly a measure of delegated
legislation and is therefore to be construed in accordance with the
rules of statutory interpretation.
It
is argued for the University that the constitution provides that
elections shall be held annually, in March: see Article 4.1. By
reason of Article 5.1, elected members are to hold office until the
next annual elections, i.e. for one year, the greater part of which
(from August until March) falls within the academic year commencing
next after the elections - and by way of contrast, only two months of
which fall within the academic year in which the elections take
place. Moreover, Article 5.3(2) provides that a member of the
Students' Representative Council shall cease to hold office if and
when he ceases to be a student.
As
I understand its case, it is essentially for this combination of
reasons (but subject to one argument to which I shall come shortly)
that the University contends that in the context of the constitution,
the expression "final year student" in Article 4.2 refers
to a student who will commence his final year in the academic year
commencing next after the elections.
Counsel
for the University also made submissions as to the generality of the
words of the article but, with respect, I do not think that there is
anything relevant in this aspect of his argument.
In
the interpretation of a statute, it is the duty of a court of law to
give effect to the intention of the body by whom the legislation is
made. No question of the validity of this piece of subordinate or
delegated legislation arises here. If the words in issue are
themselves precise and unambiguous - i.e., clear and explicit - then
they are to be given their ordinary and natural meaning: See
Warburton v. Loveland (1832) 2 D and C1 480.
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Taken
by itself, Article 4.2 is in my view clear and unambiguous. It says
simply that any full-time student, "except final year students",
residing on each Campus shall be eligible to be elected to the
Students' Representative Council. The expression "full-time
student" and "final year student" are not specially
defined for the purposes of the constitution. They are therefore to
be given their ordinary meaning.
Article
4.2 does not qualify the meaning of "final year student" in
any way. In particular, it does not say expressly that the reference
is one to students who begin their final year in the next ensuing
academic year.
No
other provision in the constitution qualifies Article 4.2 explicitly
in that way. To sustain its argument, the University has sought to
rely on the inferences that, it says, are to be drawn from Articles
4.1 and 5.3 - or, to give it the benefit of a broader possibility -
from inferences to be drawn from the other provisions of the
constitution generally.
There
is, however, no proper reason for looking beyond Article 4.2 itself.
The Article is concerned specifically with the conduct of elections,
in contradistinction to Article 3 ("COMPOSITION") and
Article 5 ("TERM OF OFFICE"). The meaning contended for by
the applicants does not give rise to any absurdity or repugnance, or
inconsistency with the rest of the constitution. At the time of their
election, the applicants were not final year students. Although the
point was not addressed by either counsel, it appears to me that it
is in principle not apposite to characterise them by reference to the
number of years for which they have been students, as was done in
argument. In principle, the test is whether or not, in the year which
on its correct interpretation Article 4.2 contemplates, a student is
a final year student. One cannot characterise a student definitively
as a final year student, or so it seems to me, until he has completed
successfully all necessary preceding academic years of study.
A
student who, having been elected to the Students' Representative
Council, in fact embarks upon his final year of study in the next
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ensuing
academic year, will not be disqualified by reason of Article 5.3(2)
itself from continuing to hold office for the full term for which he
has been elected. On the contrary, he will still be a student at the
University in March of that next ensuing academic year, when the time
again comes round for elections. He will still be a student until
May, in that next ensuing academic year.
In
contrast, the meaning for which the applicants contend has an obvious
practical point: a student who is in his final year of study in the
year in which he is elected to office will, by reason of Article
5.3(2), have to give up his office after two months - i.e. at the end
of the academic year in which he is elected - thereby causing a
vacancy on the Council.
There
is one other article in the constitution which refers to final year
students, namely Article 10. This provides for the composition and
duties of an Internal Audit Board. It is to consist of three members,
one of whom must be a "final year accounting student". This
article does not however, in my view, give rise to any inference that
the expression "final year students" in Article 4.2 has the
meaning contended for by the University. The election of members of
this board is a separate matter from those of members of the
Students' Representative Council. Moreover, members of the board are
elected at the first Statutory Domestic Meeting of the Student Body
itself. Under Article 8.3, that must be held within fourteen days of
the beginning of the academic year. Thus the final year accounting
student so elected will serve in effect throughout his final year of
study. I do not consider that anything at all turns on the fact that
he may continue to hold office for a time after he completes his
studies (i.e., in effect, throughout the long vacation at the end of
the academic year and until the first Statutory Domestic Meeting in
the following academic year is held.) In contrast to Article 5.3(2),
nothing in Article 10 expressly requires a member of the board to
vacate office on ceasing to be a student.
If
anything, Article 10 to my mind tends to confirm the applicants' view
of the meaning of "final year students" in Article 4.2. It
is at least easy to see a rationale or scheme in the way in which the
two provisions are expressed: A person who is a final year student in
the
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academic
year in which elections to the Students' Representative Council are
held is not eligible to stand as a candidate, because the election
is, effectively or substantially, one of office - holders for the
forthcoming academic year and he will no longer be a student then. In
contrast, the final year accounting student is being elected to the
internal audit board effectively or substantially for service
throughout the final year of his student days.
The
University has sought to assert that the reason for the exclusion of
final year students (according to the meaning it seeks to ascribe to
that expression) is to ensure the accountability of student office -
holders for the funds of the Students' Representative Council. In
that regard, it has also sought to rely on recommendations made by a
commission of enquiry into Students' Representative Council finances
in the 1989/1990 academic year, along those lines. It is common
ground, however, that the Commission's recomnendations were made
after the enactment of the constitution.
Such
recommendations cannot derogate from an objective interpretation of
the constitution. It is not been demonstrated, either, that the
exclusion of final year students was intended to avoid the "mischief"
of unaccountable students having control of funds. The fact is that,
on the applicants' interpretation, the office-holders will continue
to be students for two months after they vacate their officers. In
any case, the fact that they may leave the University does not in
principle mean that they are no longer accountable for the misuse of
funds.
Although
legislative policy is of course the business of legislators and not
of the courts, I think that it is also relevant to observe, in
considering whether the ordinary meaning of Article 4.2 would lead to
an absurd result, that in the way of things final year students can
be expected ordinarily to be the most senior and mature members of
the student body. That itself, it also seems to me, may be seen as a
sensible reason why they are not disenfranchised from participation
in the management of the affairs of the Student Body.
For
these reasons, this application must in my judgment succeed. I do
not consider, however, that it is necessary for the High Court of
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Swaziland
to issue any direction (assuming that I have jurisdiction to do so)
to the University's authorities. In the case of a body of the
standing of the University of Swaziland, I have no doubt that it is
sufficient simply to confirm the declaratory order sought in
paragraph (b)(i) of the original notice of application, and an order
for costs against the University itself, the Vice-Chancellor having
been cited as a formal respondent only.
The
rule nisi issued by my brother Twala J. on 16th September 1994 is
therefore confirmed to that extent, the result being that this Court
declares the applicants to have been lawfully elected members of the
Students' Representative Council of the University of Swaziland on
14th April 1994 and that the University is to pay the applicants'
costs on this application.
DAVID
HULL
CHIEF
JUSTICE
