Zimbabwe School Examinations Council v Job Gondora & Peter Matongo

### Preamble
Judgment No. SC57/21
1
Civil Appeal No. SC 394/19
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DISTRIBUTABLE:	 	( 54)

ZIMBABWE     SCHOOL     EXAMINATIONS     COUNCIL

v

(1)     JOB     GONDORA     (2)     PETER      MATONGO

SUPREME COURT OF ZIMBABWE

GUVAVA JA, MAVANGIRA JA &  BHUNU JA

HARARE: 28 MAY 2020 & 20 MAY 2021

T. Magwaliba, for the Appellant

T. Maanda, for the Respondents

MAVANGIRA JA:

[1]	This is an appeal against the decision of the High Court that set aside the appellant’s decision to cancel the ordinary level examinations results of the respondents’ daughters in all the subjects that they had sat for.

BACKGROUND

[2]	The respondents’ daughters are among a group of eight students from St David’s Girls High School who wrote Ordinary Level examinations between September and November 2017. When the Zimbabwe School Examination Council results were released, the respondents’ daughters were informed by the Headmaster of the school that their results had been cancelled by the appellant because they had unauthorised access to the mathematics paper 4330/01 through a social media platform. These students were informed that they had breached the Regulations of the Zimbabwe School Examinations Council Act, [Chapter 25:18] (Zimbabwe School Examinations Act) s 34 (1) (c) concerning examination fraud.

[3]	Through a letter dated 14 March 2018, the respondents requested the basis upon which the appellant or the school learnt about the alleged unauthorised access of the examination material. They requested for a full report of the investigations in respect of each child establishing that social media was used and the person responsible for the social media. They also requested reasons and basis for the cancellation of other examination results not related to mathematics.

[4]	The respondents stated that this information was required in terms of s 62(2) of the Constitution of Zimbabwe, 2013 and s 3(c) of the Administrative Justice Act [Chapter 10:28] (Administrative Justice Act). They requested to be furnished with a response by 19 March 2018. However, no response was tendered by the appellant to their demand and on 27 March 2018 the respondents filed a court application for review in the court a quo.

[5]	The grounds upon which the application was made were that the appellant as an administrative authority had failed to act in a fair and reasonable manner in terms of s 3 of the Administrative Justice Act. The respondents thus alleged illegality of the decision made by the appellant. They argued that it was illegal for the appellant to give a blanket cancellation of all the results in the various examinations that the respondents’ daughters had written as there had been no allegation of misconduct in the other examination papers apart from the mathematics one.

[6]	The respondents further alleged lack of proportionality. They alleged that the decision to cancel all the results was not proportionate to the alleged offence as envisaged by s 68 of the Constitution and s 3 of the Administrative Justice Act, which require that the penalty must be just, equitable and proportionate. They also argued that the decision of the appellant was not substantively fair as there were no investigations to prove the said allegations against their daughters.

[7]	The procedure adopted by the appellant was also challenged on the basis that it was irregular. The respondents alleged that there was a breach of the laws of natural justice as the respondents’ daughters were not afforded an opportunity to be heard by the appellant outside of the reports that they had written to the school. Lastly, it was stated that the appellant failed to give reasons for its decision within a reasonable time contrary to s 3(1)(c) of the Administrative Justice Act and s 68(2) of the Constitution.

[8]	Consequently, the respondents sought the following order:-

Respondent’s decision to cancel and withhold all Ordinary Level results of the applicants’ minor children namely, Ruvimbo Gondora (Candidate no. 3039) and Pamela Matongo (Candidate no. 3086) is hereby set aside.

Or alternatively

Respondent’s decision to cancel and withhold the Ordinary Level results of the applicants’ minor children namely, Ruvimbo Gondora (Candidate no. 3039) and Pamela Matongo (Candidate no. 3086) of subjects in examinations other than of mathematics is unlawful.

Accordingly, respondent shall provide for the applicants’ minor children with the ordinary level results in respect of all other subjects they wrote except mathematics which shall not be referred to the certificate of the ordinary level results.

The respondent’s Regulations called, “Zimbabwe School Examination Description of Malpractice and Schedule of Penalties” are invalid to the extent that they are ultra vires s 34(2) of the Zimbabwe School Examination Council Act [Chapter 25:08] and s 68 of the Constitution of Zimbabwe.

Respondent shall pay the costs of this application at a legal practitioner and client scale.

[9]	The application was opposed by the appellant on the basis that the relief sought by the respondents was not clear. It averred that the relief sought by the respondents was unsustainable as it could not be secured on the basis of  s 4 of the Administrative Justice Act. It also averred that the matter could not be dealt with by way of a court application as there were material disputes of facts in the matter. Reference was made to a prior judgment by ZHOU J, involving an urgent application made by the parents of four, of the eight students, excluding the respondents herein, where it was held that the matter could not be dealt with through the application procedure as there were material disputes of fact.

[10]	After hearing the application, the court a quo held that the appellant was an administrative authority in terms of the Administrative Justice Act. In terms of s 4 (2) (d) of the Administrative Justice Act it is incumbent upon an administrative authority to proffer written reasons for its decisions, which the appellant failed to do. The court a quo went on to express that in order to assess whether or not the action taken by the appellant was lawful, reasonable and fair, the court ought to have regard to its written reasons but that such reasons were not supplied.

[11]	The court a quo highlighted that the Administrative Justice Act also allows, under s 3 (3)(a-b) a departure from the requirement of giving reasons but the appellant’s opposing affidavit made no averments which warranted the court a quo to invoke that provision. Consequently, the court a quo made an order which reads as follows:

[12]	“The respondent be and is hereby ordered to supply applicants with written reasons for its action to cancel and withhold all Ordinary Level results of the applicants’ minor children namely, Ruvimbo Gondora (Candidate no. 3039) and Pamela Matongo (Candidate no. 3086) within 30 Days from the date of this order.

Should the respondent fail to supply the written reasons as ordered in para (1) above, the applicants may re-set down the matter for hearing on notice to the respondent.

Should the respondent supply the written reasons as stipulated in paragraph (1) above, the applicants and the respondent be and are hereby granted leave to do the following:

Applicants to file supplementary founding affidavits within ten days from the date of receipt of the written reasons.

Respondent to file supplementary opposing affidavit within the time frame set out in Order 32, Rule 232 of the Rules of the High Court.

The applicants may file supplementary answering affidavits within the time frames set out in Order 32, Rule 234 of the Rules of the High Court.

Applicants and the respondent to file supplementary heads of argument within the time frames set out in Order 32, Rule 238 of the Rules of the High Court.

The matter shall be re-set down for hearing in terms of Order 31, Rule 223(2) of the rules of the High Court.

Costs shall be in the cause.”

[13]   The appellant launched an appeal against the decision of the court a quo. The appellant averred that the court a quo went beyond its mandate and granted an order which neither of the parties sought. On 27 May 2019, the Supreme Court allowed the appeal and ordered that the matter be remitted to the court a quo for a determination of the issues raised by the parties.

[14]	In dealing with the matter the court a quo held that the dispute between the parties revolved around the cancellation and withholding of all November 2017 ordinary level results of the respondents’ children. The respondents’ claim a quo had been that the decision by the appellant to cancel the results was illegal and disproportionate, contrary to what was envisaged by s 68 of the Constitution. The decision was also alleged to be substantially unfair and in breach of the principles of natural justice. Further the appellant had not afforded the respondents’ daughters reasons for the decision within a reasonable time as such their right to education was infringed upon.

[15]	The court a quo held that although s 34 (3) of the ZIMSEC Act states that this body shall not consult or invite representations from any person before cancelling or postponing any examination or annulling any results or withdrawing any certificate, ‘this seems to fly in the face of s 68 of the Constitution.’ The court a quo found that the provision gave the appellant authority to act arbitrarily without considering the right to be heard. The court also found that the decision of the appellant to cancel the mathematics results in respect of the two students could not be faulted as there was unequivocal evidence showing that they had seen the paper prior to the examination.

[16]   	However, the court a quo expressed that the same could not be said for the other papers which the respondents’ daughters sat for as there was no indication of “unauthorised access” to any of them prior to sitting or that there was some fraud or dishonest conduct on the part of the students. The court a quo further held that remitting the matter to the appellant would be an exercise in futility as the appellant had already cancelled the results.

[17]	In the result, the court a quo issued an order to the effect that the decision by the appellant to cancel or withhold the results of the respondents’ daughters’ results in other subjects other than mathematics was unlawful. It thus ordered the appellant to provide the respondents’ daughters in all the other subjects except mathematics. The respondents’ prayer for costs on a legal practitioner and client scale was dismissed. Aggrieved by the decision of the court a quo, the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

The court a quo erred in finding that the issue estoppel (sic) did not apply to the facts before it, yet the High Court of Zimbabwe sitting at Harare, per ZHOU J, in a judgment handed down under HH 124/18 which was handed down on 7 March 2018, had already made a ruling that the decision of the appellant as contained in its letter that affected the rights of the minor children of the first and second respondents in casu, could not be challenged by way of a court application.

The court a quo erred in granting a declaratur that the appellant’s decision, as contained in its letter of  3 November 2017, was unlawful because as the first and second respondents had sought relief in terms of s 4(1) of the Administrative Justice Act [Chapter 10:28], the court was generally restricted to granting relief that fell within the purview and ambit of s 4(2) of the said Act, which section prescribes the manner in which the court may exercise its review powers in granting the application filed in terms of s 4(1) thereof, regard particularly being had to the fact that the spirit and purpose of the Administrative Justice Act is to provide a medium through which the decision of an administrative authority may be taken on review, and not an avenue through which to seek a declaratur from the High Court.

The court a quo erred in finding that the decision of the appellant to cancel and withhold the results of the first and second respondents’ minor children in respect of the September/November 2017 Ordinary Level examinations in subjects other than mathematics was unlawful when the decision to cancel and withhold those examination results was reasonably justifiable in a democratic society specifically for purposes of maintaining and upholding the integrity of the national examinations system as a whole by discouraging acts of examination malpractice particularly taking into account the fact that the court a quo was satisfied that the first and second respondents’ minor children had in fact been involved in some measure of examinations malpractice which was grounded in premature access to examination material.

The court a quo erred in concluding that it would be an exercise in futility to remit the matter back to the appellant for a redetermination given that s 4(2) as read with s 4 (3) of the Administrative Justice Act enable the High Court, in remitting the matter back to an administrative authority, to give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with s 3 of the said Act, which directions may include the manner or procedure which the administrative authority should adopt in arriving at its decision, and as such, the court a quo could have directed the appellant to carry out investigations into any examinations malpractice concerning the first and second respondents’ minor children in respect of their results for the September/ November ordinary level examinations in subjects other than mathematics before making the decision whether or not to cancel and withhold their results in those subjects.

SUBMISSIONS IN THIS COURT

[18]	At the hearing of this appeal, Mr Magwaliba, for the appellant, sought to make an amendment to the appellant’s grounds of appeal. He sought to amend grounds of appeal two, three and four, which the court granted with the consent of Mr Maanda for the respondent. The grounds of appeal were therefore amended to read as follows:

The court a quo erred in finding that the issue estoppel (defence) did not apply to the facts before it, yet the High Court of Zimbabwe sitting at Harare, per ZHOU J, in a judgment handed down under HH 124/18 which was handed down on 7 March 2018, had already made a ruling that the decision of the appellant as contained in its letter that affected the rights of the minor children of the first and second respondents in casu, could not be challenged by way of a court application.

The court a quo erred in granting a declaratur that the appellant’s decision, as contained in its letter of  3 November 2017, was unlawful when the first and second respondents had sought relief in terms of s 4(1) of the Administrative Justice Act [Chapter 10:28].

The court a quo erred in finding that the decision of the appellant to cancel and withhold the results of the first and second respondents’ minor children in respect of the September/November 2017 Ordinary Level examinations in subjects other than mathematics was unlawful.

The court a quo erred in concluding that it would be an exercise in futility to remit the matter back to the appellant for a redetermination given that s 4 (2) as read with s 4 (3) of the Administrative Justice Act enable the High Court, in remitting the matter back to an administrative authority, to give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with s 3 of the said Act.

[19]	In advancing his argument in respect of these grounds of appeal, Mr Magwaliba argued that, in taking the administrative decision that it did, the appellant acted in accordance with the law. That law, being ss 34(2)(a) and 34(3) of the ZIMSEC Act, was not set aside by the court  a quo. He argued that, as the court a quo had not set aside that law, it had ordered the appellant to do something that was outside the law when it ordered the appellant to set aside administrative action that was taken in compliance with the law.

[20]	Mr Magwaliba further argued that, in interpreting s 34, there is no limit to the power of the appellant in cancelling results. He submitted that in terms of s 34(2)(a) what is proscribed and made an offence is the obtaining of unauthorised access to any examination material, (my emphasis) and such a provision is very broad. He argued that it did not have to be access to examination material in respect of all the subjects but it could be access to examination material in respect of a particular examination in an examination year. Therefore, since it was not in dispute that the children of the respondents obtained unauthorised access to examination material, the appellant could nullify the entire examination certificate in terms of s 34(2).

[21]	Mr Magwaliba argued that in exercising its discretion in terms of s 34(3), it is not necessary for the appellant to consult or invite representations before taking action. As such, it was a misdirection on the part of the court a quo to review and set aside the decision of the appellant on the basis that no representations were made, without having declared s 34(3) of the ZIMSEC Act ultra vires s 68 of the Constitution. To further motivate this argument, he submitted that, in any event, there was no need to try and establish the veracity of any facts since the children of the respondents had admitted to having unauthorised access.

[22]	Mr Magwaliba further gave the illustration that in terms of the ZIMSEC Description of malpractice & Schedule of Penalties, the appellant has the power to even cancel all results of an examination centre without identifying particular candidates as long as there has been widespread malpractice. In that same vein he argued that the meaning of cancel all results (my emphasis) as envisaged in the Schedule of Penalties does not limit itself to a particular subject. He argued that there is, in fact, no reference to the particular paper or subject which would have been accessed and that the schedule gives the appellant the discretion to cancel all results. As a result, the whole process in an examination year is regarded as an examination despite the fact that it is broken into subjects.

[23]   Counsel submitted that the integrity of the examinations is very instrumental in the education system of Zimbabwe. As such, once there has been proof of malpractice, the appellant has the power to impose a sentence it deems appropriate. He averred that it is in the discretion of the appellant to cancel results and such discretion can only be interfered with if it is shown that it was improperly exercised.

[24]	On the second ground of appeal, Mr Magwaliba averred that the respondents went to court for specific relief, which was the setting aside of the administrative action of the appellant. He argued that that relief was not premised on s 14 of the High Court Act [Chapter 7:06] which relates to the granting of declaratory orders. As such, a declaratur ought not to have been granted, as he avers that the requisites of a declaratory order were not met.

[25]	Mr Maanda, for the respondent, argued in response, that it would be incorrect and unjust to conclude that the appellant is beyond reach and anything that it does, as long as it is within its discretion is acceptable. He submitted that such an interpretation of s 34 of the ZIMSEC Act would render s 68 of the Constitution and the Administrative Justice Act irrelevant if the appellant’s actions are made to be out of the reach of the court.

[26]	Counsel averred that it was incorrect for the appellant to state that the respondents ought to have prayed for the setting aside of s 34 for being unconstitutional. Rather, he argued that s 34 is not invalid, but only needs to be interpreted properly for it to be consistent with the Constitution and the Administrative Justice Act.

[27]	Mr Maanda further made the submission that, in terms of s 34, only the results of that particular subject should be cancelled and not the entire certificate. He argued that an examination in this case was not a level such as ‘A’ level or ‘O’ level but an examination on a particular subject, such that what the law envisaged was the withholding or cancellation of results relating to a particular subject in which material had been prematurely accessed.

[28]	In relation to the granting of a declaratory order, counsel argued that an application for a declaratur which is based on grounds for review is not an application for a declaratur but an application for review. In that regard, he averred that although the reasons used in the application were for review and the court a quo granted a declaratur, it did not change the application from one of review to one of a declaratur.

[29]	In his final submissions, Mr Maanda argued that the fourth ground of appeal was meritless. He submitted that there was no need for the remittal of the matter to the court a quo as the decision taken by the court a quo did not substitute that of the appellant. He argued that the court a quo merely interpreted s 34 and assessed whether the withholding of all the results was proportionate to the offence.

ISSUES FOR DETERMINATION

[30]	It appears to me that three issues arise in this matter for determination. Firstly, whether or not the court a quo erred in granting a declaratur where the application before it was for review. Secondly, whether the court a quo misdirected itself in finding that the appellant’s decision to withhold the respondents’ children’s results was unlawful. The third issue, emanating from the appellant’s third ground of appeal, relates to the question of whether the court a quo was estopped from entertaining the application before it in light of the judgment by ZHOU J in HH 124/18. I intend to deal with this issue first.

APPLICATION OF THE LAW TO THE FACTS

Whether or not the court a quo was estopped from hearing this matter.

[31]	It is common cause that the annulment of the results by the appellant did not only affect the respondents’ daughters but affected several other students as well. The other affected students and their parents filed an urgent chamber application in the court a  quo which was heard by ZHOU J and judgment was handed down in the matter under HH 124/18. The respondents were not party to that matter.

[32]	The appellant argues that in that judgment which is still extant, ZHOU J held that the decision of the appellant to annul the respondents’ daughters’ results could not be determined through a court application because there were material disputes of fact in the matter. The appellant therefore argues that the respondents were estopped from approaching the court through the same application procedure.

[33]	In Shamrock Holdings Limited t/a Inyathi Hunters v The Minister of Environment &

Tourism N.O & Ors SC 21/10. The Court expressed the following sentiments:

“Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue – see Galante v Galante (supra) at p 149 – 150.

In Galante v Galante (supra) at p 149 – 150, SMITH J cited with approval the remarks of LORD KEITH of Kinkel in Arnold & Ors v National Westminister Bank plc (1991) 3 All ER 41, 47 that:-

‘If in litigation on one such cause of action any such separate issues whether a particular condition has been fulfilled is determined by a Court of competent jurisdiction, either on evidence or on admission by a party to the litigation, neither party can, in subsequent litigation between them on any cause of action which depends on the fulfillment of the identical condition, assert that the condition was fulfilled if the Court has in the first litigation determined that it was not, or deny that it was fulfilled if the Court in the first litigation determined that it was.’

On what constitutes “an issue” SMALLBERGER JA remarked in Horowitz v Brock & Ors (supra) at 179H-180 as follows:

‘An issue, broadly speaking, is a matter of fact or question of law in dispute between two or more parties which a Court is called upon by the parties to determine and pronounce upon in its judgment, and is relevant to the relief sought.”

[34]	Although the matter brought before ZHOU J arose from the same facts as that of the respondents, the issues that were presented before the two courts were quite different and so were the parties. In casu, the respondents questioned whether or not the appellant, as an administrative authority, had acted within the confines of s 3 of the Administrative Justice Act in nullifying all of the respondents’ daughters’ results including those in which no allegation of unauthorised access had been made. On the other hand, the urgent chamber application before ZHOU J was based on the question of whether or not there was evidence which established that the applicants’ children had had access to examination papers prior to writing their examination.

[35]	It is quite apparent that what was challenged by the parties in the two cases was different. In casu, there are no allegations of material disputes of fact and there is nothing on record to suggest as such. The issues before the two judges were different.

I am not persuaded that CHIRAWU-MUGOMBA J was bound by the decision made by ZHOU J. This is because, although premised on the same cause of action, the issues determined by the courts were different and the respondents were not a party to the proceedings before ZHOU J.

[36]	I find that there were no material disputes of fact in this matter, especially given the fact that the respondents’ daughters, through their reports, had admitted to having had sight of the mathematics paper. However, nothing was said of the other subjects. Therefore, the appellant’s contention that there were material disputes of fact and that the respondents were estopped from making a court application based on the decision of ZHOU J cannot stand.

[37]	Based on the dispute that was before him, ZHOU J held that the matter could not be dealt with through a court application, whilst CHIRAWU-MUGOMBA J could determine the issue that was before her through the application procedure as all the relevant information to answer the questions raised in that application was on record. I am therefore of the view that the appellant’s first ground of appeal has no merit.

Whether or not the court a quo erred in granting relief of a declaratory nature

[38]	For the sake of completeness, I reproduce s 3 of the Administrative Justice Act.  It provides as follows:

“3  Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall-

(a)     act lawfully, reasonably and in a fair manner; and

(b)   act within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to take the action by the person concerned; and

(c)    where it has taken the action, supply written reasons therefore within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.

(2)   In order for an administrative action to be taken in a fair manner as required by paragraph (a) of subsection (1), an administrative authority shall give a person     referred to in subsection (1)-

(a)  adequate notice of the nature and purpose of the purposed action; and

(b) a reasonable opportunity to make adequate      representations; and

(c)   adequate notice of any right of review or appeal where applicable.

(3)  An administrative authority may depart from any of the   requirements referred to in subsection (1) or (2) if-

(a) 	the enactment under which the decision is made expressly provides for any of the matters referred to in those subsections so as to vary or exclude any of their requirements; or

(b)	 the departure is, under the circumstances, reasonable and justifiable, in which case the administrative authority shall take into account all relevant matters, including-

(i) 	the objects of the applicable enactment or rule of common law;

(ii)  	the likely effect of its action;

(iii)		the urgency of the matter or the urgency of  acting thereon;

(iv) 		the need to promote efficient administration and good governance;

(v) 	the need to promote the public interest.

(the emphasis) is mine)

[39]	It is the appellant’s contention that the alternative relief sought by the respondents fell outside the purview of the orders which the High Court can grant in terms of   s 4(2) of the Administrative Justice Act. The appellant therefore avers that the court a quo did not have the power to grant such an order, which was declaratory in nature, as it fell outside the purview of its powers in terms of s 4(2) of the said Act. Section 4 of the Administrative Justice Act provides as follows:

“4 Relief against administrative authorities

(1)   Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

(2)  Upon an application being made to it in terms of subsection (1), the High Court may, as may be appropriate—

(a)  confirm or set aside the decision concerned;

(b) refer the matter back to the administrative authority concerned for consideration or reconsideration;

(c)  direct the administrative authority to take administrative action within the relevant period specified by law or, if no such period is specified, within a period fixed by the High Court;

(d) direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law or, if no such period is specified, within a period fixed by the High Court;

(e)  give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.”

[40]	The order granted by the court a quo which the appellant argues fell outside the ambit of what is prescribed under s 4 (2) of the Administrative Justice Act is as follows:

“Respondent’s decision to cancel and withhold the September/ November 2017 Ordinary Level results of the applicants’ minor children namely, Ruvimbo Gondora (Candidate no. 3039), and Pamela Matongo (Candidate no. 3086) of subjects in examinations other than mathematics is unlawful.

Accordingly, respondent shall provide the applicants’ minor children the ordinary level results in respect of all other subjects they wrote in the September/ November 2017 examinations except mathematics shall not be referred to on the certificate of the ordinary level results.

The respondent shall pay the costs.”

[41]	From a reading of s 4 of the Administrative Justice Act it is clear that the court a quo did not act outside the scope of its mandate. It is a fundamental principle of law that the literal rule of interpretation is the first port of call when construing legislation. In Endeavour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S) at 356F-G, this Court stated, per GUBBAY CJ, that;

“The general principle of interpretation is that the ordinary, plain, literal meaning of the word or expression, that is, as popularly understood, is to be adopted, unless that meaning is at variance with the intention of the Legislature as shown by the context or such other indicia as the court is justified in taking into account, or creates an anomaly or otherwise produces an irrational result.”

[42]	From the above authority, a court will only depart from the literal approach of interpretation where the meaning is at variance with the intention of the legislature. In this case there is no reason to depart from the literal interpretation of the statute as it is clear and unambiguous. It appears that the order granted by the court a quo is in compliance with s 4(2)(c) and (e) of the Act.

[43]	In order to set aside the decision of the appellant, the court a quo had to establish a basis for doing so, and the basis shown in its order was unlawfulness. In the second paragraph of the order, the court a quo gives the appellant directions on what to do. Such action lies within the confines of s 4(2) of the Administrative Justice Act. In subsection (c) the High Court is given power to direct the administrative authority in question to take administrative action within the relevant period.

[44]	In this instance the court a quo directed that the appellant shall provide the respondents’ minor children with their ordinary level results for all the other subjects except mathematics. Subsection (e) also gives the court a quo the power to give directions which it may consider necessary or desirable to achieve compliance. Therefore, the argument that the court a quo acted outside the ambit of its powers as per s 4(2) of the Administrative Justice Act is unfounded. For that reason, the appellant’s second ground of appeal lacks merit.

Whether the court a quo misdirected itself in finding that the appellant’s decision to withhold the respondents’ children’s results was unlawful.

[45]	The appellant is of the contention that the cancellation of all the results of the respondents’ daughters was a reasonable means in the preservation of the integrity of the national examinations system. The appellant argues that it cannot be expected to award results to a student that admits to cheating in one examination, as that would compromise the integrity and reliability of the examinations.

[46]	In answering this question, the first port of call is s 34 of the ZIMSEC Act. It reads:

“34 Cancellation of examinations and annulment of results

(1) Subject to regulations made in terms of section thirty-six, the Board may cancel or postpone any examination or annul the results of any examination, either throughout Zimbabwe or in respect of any examination centre or area within Zimbabwe, if the Board is satisfied that—

(a)    an unauthorized person has obtained access to any examination material; or

(b)  the contents of any examination material have been revealed to an unauthorized person; or

(c)   there has been an impersonation of a candidate sitting the examination or   any other form of fraud or dishonest conduct in regard to the examination; or

(d)   any rule or regulation governing the examination has been contravened; and that it is necessary to cancel or postpone the examination or annul the results, as the case may be, in order to preserve the integrity of the examination system in Zimbabwe.

(2) If the Board is satisfied that any candidate for an examination—

(a)  obtained unauthorized access to any examination material prior to the examination; or

(b)     was impersonated by any other person at the sitting of the examination; or

(c)  engaged in any form of fraud or dishonest conduct in regard to the examination; or

(d)     contravened any rule or regulation governing the examination;

the Board may prohibit him from sitting the examination or may annul his results or withdraw any certificate, diploma or award given to him in respect of the examination, as may be appropriate.

(3)   It shall not be necessary for the Board to consult or invite representations from any person before cancelling or postponing an examination or annulling the results of an examination in terms of subsection (1).” (the emphasis is mine)

[47]	The above highlighted phrase “in respect of the examination, as may be appropriate” appears to be the area of contention. The appellant’s interpretation seeks to define the term ‘the examination’ as being the entire range of subjects on which candidates are being examined in an academic year or sitting. The respondents’ interpretation on the other hand, defines ‘the examination’ as that particular examination for a specific subject that a candidate sits for.

[48]	The Oxford Advanced Learner’s Dictionary defines examination and gives examples of how to use the word. It defines examination as,

“a formal written, spoken or practical test, especially at school or college, to see how much you know about a subject, or what you can do.

successful candidates in GCSE examinations

examination in something- to sit an examination in mathematics

examination for something- in 1864 he passed the examination for the Indian Civil Service.” (the emphasis is mine)

[49]	The Collins dictionary defines it as,

“An examination is a formal test that you take to show your knowledge or ability in a particular subject, or to obtain a qualification.” (the emphasis is mine)

[50]	These two definitions tally with the respondents’ definition, that an examination in its most primary and simplest form, refers to an examination in a particular subject.

[51]   In Chihava & Ors v The Provincial Magistrate Francis Mapfumo N.O & Anor CCZ 6/15 at p 8 of the judgment, the Constitutional Court espoused the following principles that are applicable in the interpretation of legislation:

“i)      the Legislature is presumed not to intend an absurdity, ambiguity or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment.

ii)      therefore, in order to ascertain the true purpose and intent of the Legislature, regard is to be had, not only to the literal meaning of the words, but also to their practical effect.”

[52]	I am of the view that the literal as well as the purposive interpretation of s 34 intends to cancel or withdraw the results of a candidate in a particular subject who had unauthorised access to examination material in that particular subject. Had the legislature intended to cancel all the results of an examination academic year sitting, it would have expressly stated so.

[53]	Furthermore, the statute provides for the cancellation of an examination ‘as may be appropriate’. This phrase suggests that a degree of proportionality with the offence ought to be adhered to. I am therefore of the opinion that the cancellation of the results in all subjects, even those where there was no allegation of cheating, was arbitrary. The decision of the appellant was disproportionate to the offence committed by the respondents’ daughters.

[54]	I therefore find no reason justifying the setting aside of the decision of the court a quo. This appeal being therefore unmeritorious, cannot succeed. This is however, a matter in which, in my view, it is proper that there be no order as to costs.  This is because the appellants actions were motivated by the desire to safeguard the integrity of the examinations system in Zimbabwe.  In addition, the appellant would not have ended up in the situation in which it finds itself had the respondents’ daughters not improperly accessed the mathematics paper.  For this reason, there is no justification for the respondents to benefit from an order of costs in their favour.

[55]	Accordingly, it is ordered as follows:

The appeal be and is hereby dismissed.

There is no order as to costs.

GUVAVA JA                  			I agree

BHUNU JA				I agree

Dube, Manikai & Hwacha, appellant’s legal practitioners

Maunga, Maanda & Associates, respondents’ legal practitioners