17 )ro / r;_

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

/

DELETE WHICHEVER IS t)K)T APPLICABLE (1) REPORTABLE: Y§5i NO (2) OF INTEREST TO OTHERS JUDGES: 'Jfi-S/NO (3) REVISED

ll~~~~.: .. J.,Q1±.. Si~~····

In the matter between:

Case number: 49442/2013

Date:

ACCELERATED CHRISTIAN EDUCATION SOUTH AFRICA APPLICANT

AND

SOUTH AFRICAN QUALIFICATIONS

AUTHORITY

COUNCIL FOR FURTHER EDUCATION AND

TRAINING QUALITY ASSURANCE

FIRST RESPONDENT

SECOND RESPONDENT

JUDGMENT

TOLMAY,J:

INTRODUCTION

[1] The Applicant, Accelerated Christian Education South Africa (ACE)

launched an urgent application on 3 March 2017 against the South

African Qualifications Authority (SAQA) as First Respondent and the

Council for General and Further Education and Training Quality

Assurance (Umalusi) as Second Respondent.

[2]

[3]

ACE provides educational programmes through a number of

independent schools, the so-called Schools of Tomorrow (SOT).

SAQA is a juristic person established in terms of the National

Qualifications Framework Act, 67 of 2008, (the NQF Act). SAQA is

responsible to oversee the implementation of the National

Qualifications Framework (NQF) and to register qualifications

recommended by Quality Councils, if it meets the relevant criteria.

[4] Umalusi is a juristic person established by sec 4 of the General and

Further Education and Training Quality Assurance Act, 58 of 2001

(GFETQA Act) and is the Quality Council for General and Further

Education and Training. When a qualification meets the relevant

criteria it is certified by Umalusi and recommended to SAQA for

[5] ACE launched an urgent application against the Respondents after

some of the learners of SOT experienced problems with the

qualifications they obtained at SOT. ACE seeks a final interdict against

the Respondents restraining them from informing the public that the

SOT Grade 12 College Entrance Certificate (ACE certificate)

a. has not been registered on the General and Further Education

and Training Qualifications Sub-framework (GFETQ

framework);

b. that the ACE's certificate has been deregistered; and

c. that the qualification is invalid.

[6] The Respondents in due course proceeded to launch a counter­

application. In the counter- application SAQA, supported by Umalusi

seek declaratory orders that:

a. The provisional accreditation granted by Umalusi to ACE has

been terminated ;

b. That ACE has been operating unlawfully as an assessment

body of qualifications;

c. That ACE be prohibited to act as an assessment body;

d. That ACE be ordered to inform ACE students that it may not

enrol new students, until it has been accredited with Umalusi.

e. That it be declared that ACE has been operating unlawfully

since 15 September 2016 and continues to operate unlawfully,

in that it has been acting as the assessment body of certain

4

in that it has been acting as the assessment body of certain

identified qualifications without having been accredited as an

assessment body of Umalusi.

[7] Despite three attempts to deal with this matter in the urgent Court, the

matter was either struck from the roll or postponed and it was

ultimately enrolled in the Third Court as a special motion. The costs of

these appearances were reserved and I will deal with this aspect later

on in the judgment.

CLASS ACTION

[8] ACE contends that it is entitled to bring this application, not only in its

own name but also in the interest of all learners who completed the

ACE qualification in terms of sec 38 of the Constitution.

[9] This was not opposed by the Respondents. It is clear that the actions

of SAQA and the relief sought have an impact on the rights of the

learners who obtained the ACE qualification. No specific relief was

however sought in this regard . I gather that this approach was

accepted and that I need not concern myself with this aspect or grant

any relief pertaining to this aspect.

BACKGROUND

[1-0] In order to understand the disputes between the parties one needs to

consider the history, as well as what is provided by ACE to SOT. In

this regard one also needs to consider the legislative framework, which

was amended from time to time. For the most part the facts are

common cause between the parties.

[11] ACE promotes and sells to prospective high school students an

education programme (the ACE programme). It does not do the actual

teaching, but the schools that are affiliated to it, the SOT do so. After a

student has advanced through the ACE curriculum, ACE confers a

qualification upon the student.

[12] ACE has a specific pedagogical approach, which implies that each

grade of school has a particular certificate. There are no final

examinations written. The relevant qualification in this matter is the

school leaving or exit qualification which may be called the ACE Grade

12 Qualification, (the ACE qualification). ACE contends that this is

comparable to a matric qualification and this is also acknowledged by

the Respondents on a perusal of the correspondence between the

parties, to which reference will be made in due course. The

programme proffered by ACE has never been quality assured by

Umalusi.

[13] The ACE qualification was registered with SAQA for the first time in

2000. SOT offers the ACE qualification as an exit qualification. ACE

6

never enrolled students, SOT did that, but ACE is a provider of an

education programme.

[14] The South African Qualifications Act 58 of 1995 (the SAQA Act,

established SAQA to oversee the National Quality Framework (NQF),

which was established by sec 2 of the National Standard Bodies

Regulations (NSB Regulations) in 1988. The SAQA Act was repealed

on 1 June 2009 by the National Quality Framework Act (NQF Act).

[15] Guidelines were provided by SAQA for submissions of existing

qualifications. The process of registering individual qualifications led to

a decision by SAQA that all existing qualifications would be registered

on the NQF on an interim basis. On 25 June 1998 ACE submitted their

qualifications and cited SOT as the institutions which would provide

their qualifications. Thereafter the ACE qualification was registered by

SAQA in 2000.

[16] The interim registration of the ACE qualification was in terms of certain

SAQA transitional arrangements re-registered from 1 July 2003 to 30

June 2006 and again from 1 July 2006 to 30 June 2009 and then again

from 1 July 2009 to 30 June 2012. The ACE qualification was, during

this period registered on the NQF sub-framework. Umalusi was not

involved in the registration or re-registration process. ACE applied

directly to SAQA for registration.

z

[1?] In 2001 the General and Further Education and Training Quality

Assurance Act 58 of 2001 (GFETQA) was passed and sec 4 thereof

established Umalusi as the Quality Council responsible for the quality

assurance of such qualifications.

[18] Section 23(1) of the GFETQA Act requires Umalusi to develop policy

and criteria assurance for private education institutions and any

institutions required to register as an independent school under the

South African Schools Act 84 of 1996 must, in terms of sec 23(2),

comply with the policy and criteria.

[19] On 30 October 2012, Umalusi's Policy and Criteria for the Quality

Assurance, Accreditation and Monitoring of Independent Schools and

Private Assessment Bodies became applicable. In order to be

compliant with this Policy, an independent school needed to be

accredited to offer a qualification on the NQF framework, which

qualification had to be assessed by an accredited private assessment

body.

[20] Umalusi gazetted its policy for the sub-framework in September 2014.

In terms thereof, a qualification must be recommended by SAQA for

registration by Umalusi as the quality council if it "conforms to the

council's policy and criteria for the registration of qualification". In order

to re-register the ACE certificate from 1 July 2015, ACE had to have

the recommendation of Umalusi which was not required when it

originally registered and thereafter re-registered the ACE qualification.

[21] The policy beca_me applicable from 7 April 2017 (the 2017 Policy)

and similarly provides for the accreditation of independent schools

and of private assessment bodies. It is a requirement, to be

compliant with the 2017 Policy that an independent school must be

accredited to offer the qualification or programmes leading to a

qualification on the NQF framework and that such qualification must

be assessed by an accredited assessment body.

[22] A perusal of the papers reveal that SAQA at all relevant times

regarded the ACE qualification as a valid qualification. On 5

September 2012 the Deputy Director of SAQA stated as follows

pertaining to the ACE qualification:

"I wish to confirm that the Schools of Tomorrow has the qualification

'Entrance Certificate 12", registered on the National Qualifications

Framework (NQF). Its Id number is 17209 and it consists of 148

credits. It is registered at NQF Level 4. This is the same level at

which the National Senior Certificate, which is written by learners at

the end of Grade 12, is registered.

The purpose of the National Senior Certificate is the same as the

Entrance Certificate: Grade 12, namely to enable school leavers to

gain access to University study or to enter the world of work. Both

qualifications cover the same subject content at the same level of

difficulty.

Leaners in possession of the Entrance Certificate: Grade 12 may

apply to South African universities for admission to Higher Certificate,

Diploma and Degree study in the same way as learners in possession

of a foreign school leaving qualification. Admission may be granted to

such Higher Education studies by the relevant University Senate

subject to the same conditions as are applicable to other applicants

with a foreign qualification."

[23] On 29 October 2012 the minister published her approval of Umalusi's

"Policy and Criteria of the Quality Assurance, Accreditation and

Monitoring of Independent Schools and Private Assessment Bodies

(Policy and Criteria for Accreditation 2012) in terms of sections 17 A

and 23(1) of the GFETQA Act. The policy and Criteria for Accreditation

stipulates as follows:

"40.1 It provides for two types of accreditation:

40. 1. 1 First, the accreditation of independent schools, which

involves a quality assurance process to evaluate the

capacity of the school to offer a qualification on the GFET

Sub-Framework and to implement the curriculum at the

required standard;

And

40.1.2 Second, the accreditation of private assessment

bodies, which requires a quality assurance process to

10

evaluate the body's capacity to assess a qualification on

the GFET Sub-Framework and to evaluate the quality

and standard of the assessment products provided by

the private assessment body. " [Court's emphasis]

[24] ACE, after consideration, decided that the ongoing registration of the

qualifications beyond the 2015 registration period would not be

feasible. It is common cause that it was agreed with Umalusi, that

there would be a reasonable "teach out" period for the qualifications to

ensure that learners still in the system will not be disadvantaged.

[25] In a letter dated 27 September 2013 Umalusi wrote to ACE that:

"Given that the Entrance Certificate is registered until 2015 and may

be offered until June 2019, Umalusi will provide provisional

accreditation to these schools, at least until such time as the status

of the Entrance Certificate is determined, and the qualification lapses,

is subsumed or actually registered as an alternative level IV

qualification." [Court's emphasis]

[26] On 18 July 2014 Umalusi addressed a letter to ACE. This letter reads

in relevant part as follows:

"Umalusi has noted your decision not to, as stated by you in your

letter: ' ... apply for the reregistration of the Grade 12 College Entrance

Certificate registered with SAQA as a South African qualification'. In

order to ensure that learners who are currently offering the qualification

11

are not unduly ·disadvantaged by the phasing out of the Grade 12

Entrance Certificate, Umalusi will inform, Provincial Education

Departments (PED), Higher Education South Africa (HESA) and the

South African Qualifications Authority (SAQA), that, among other

things, the qualification will be phased out in 2019 and that, with

effect from 2014, leading to 2019, providers are not expected to

enrol new learners for the qualification but are instead expected

to put in place a "teach-out" process for affected learners.

Further, that present arrangements around the recognition of the

Grade 12 College Entrance Certificate should stand. If necessary

Umalusi's correspondence may be followed by formal meetings

with the DBE, PED's and HESA. 11 (Court's emphasis).

[27] When the qualification was not re-registered with SAQA in 2015, the

NQF system automatically imposed a so-called teach-out period made

up of the last date for enrolment, which is one year after the last date

of registration, being 30 June 2016; and the last date for achievement,

which ensures that students are granted sufficient opportunity to

repeat and obtain the qualification, being 30 June 2019.

[28] SAQA issued a certificate numbered 17209 which was placed on its

website reflecting that the qualification is registered on the General

and Further Education and Training Qualifications Sub Framework and

has passed the end date, that it was registered as a level 4

qualification before 2009, that its registration start date is 1 July 2012

and the registration end date is 30 June 2015, that the last date for

enrolment is 30 June 2016 and the last date for achievement is 30

June 2019.

[29] This certificate numbered confirmed the last date of enrolment and it

also states as follows:

"Purpose and rationale of the Qualification

Graduate from the FET Board (NQF level 4) into all tertiary institutions

(NQF level 5), including universities, Technicon 's and colleges.

Learning assumed to be in place and recognition of prior learning

Schools of Tomorrow Vocational Preparatory Certificate or any similar

qualification equivalent to the FET Certificate at IVQF level 3."

[30] The last date when ACE may issue this certificate under registration

number 17209 is 30 June 2019. Any learner awarded the qualification

after the final date of achievement will receive a certificate without any

SAQA registration number.

[31] ACE contends, and correctly so, that the reference to their qualification

should not be removed from the SAQA database and website after

June 2015, when the registration lapses, but the status should be

changed to "qualifications that have passed their registration end

date". Any higher education institution or employer will in future be able

~-

--

to confirm the legitimacy of the qualifications issued to a candidate if it

was achieved on or before 30 June 2019.

[32] The position as set out above was confirmed by UMALUSI in the

answering affidavit filed by it in the main application. In order to re­

register the ACE certificate from 1 July 2015 ACE had to have the

recommendation of Umalusi, which it had not required when it

originally re-registered. Umalusi stated inter alia as follows in its

opposing affidavit to the main application:

"The non-re-registration of the ACE Certificate in 2015 must be

distinguished from the accreditation of independent schools ...

"2. 11 In order to accommodate institutions such as those

associated with the Applicant, Umalusi made a

concession by recognising such schools as provisionally

accredited in order to facilitate their registration as

independent schools with the Provincial Departments of

Education . . . As the Applicant chose not to re-register

the ACE Certificate, the provisional accreditation for its

schools will endure for the ACE qualification until 30 June

2019."

"4.4 It is incumbent upon the Applicant to advise its learners

that the ACE Certificate is not a NSC nor a Senior

Certificate and is not recognised as such. It should be

noted that such a statement does not cause the ACE

qualification to be invalid: It does however mean that the

onus is on the individual to make a case for its

equivalent."

"4.5 SAQA has registered the ACE qualification. It can

confirm the existence of the qualification on the NQF. It

cannot comment on the authenticity of an individual

certificate as it is not in possession of these candidates'

final results as a part of the NLRD. In other words, the

only body that can verify the ACE Certificate is ACE itself

- no external agency is in a position to do a verification."

"3.5.7 The concept of a qualification having a 'teach-out' phase

is standard practice and not a special concession

granted to Applicant."

"3.5.8 The ACE Certificate would remain on SAQA's data base

as a qualification that has passed its registration end

date. Any form of confirmation would need to recognise

the existence of the qualification on the NQF albeit as

one without a quality assurer."

"3.5.9 Umalusi has at all times acknowledged the registration

of the ACE Certificate, has acknowledged that it is in a

'teach-out' phase which will end on 30 June 2019, has

provisionally accredited the ACE Schools in order for the

Applicant to complete the 'teach-out' phase and has

never cancelled certificates issued by the Applicant nor

can it do so."

"3.5.10 Umalusi recognises the previous registration of

the ACE Certificate as a qualification that was registered

on the NQF and recognises that it is in a 'teach-out'

phase until 30 June 2019."

[33] It was argued by Mr Bergentuin SC, on behalf of ACE that a phase-out

period is well-known in legal practice. The example he presented was

the phasing out of the 5 year LLB degree. During 1998, the post­

graduate, 5 year LLB-degree was phased-out, and replaced with a 4

year LLB-degree. Simultaneously the 4 year B.Proc-degree was

phased out, and from 2002 learners had to enlist for a 4 year LLB­

degree, after which date the B.Proc-degree was no longer awarded.

Notwithstanding this phase-out, B.Proc-degrees which had been

obtained before the final date for achievement remain valid, and many

practitioners are today still practising as attorneys and legal

representatives with a B.Proc qualification. Similarly B.Proc-degrees

awarded until the final date of achievement, although learners could

not enlist for B.Proc-degrees after 1998. There exists no logical

reason, he argued, why the position should be different with the ACE

certificates. This argument seems to be sound and based on logic.

[34] From the history one gleans that SAQA registered the ACE

qualification and recognised it as a valid qualification. Umalusi also

recognised the previous registration by SAQA and the subsequent

teach out phase, as ACE decided not to apply for re-registration.

THE MAIN APPLICATION

[35] Despite the fact that Umalusi granted provisional accreditation to the

schools offering the qualification until 30 June 2019, and the fact that

SAQA issued the certificate recognising that the last date for

achievement of the qualification is 30 June 2019, SAQA started

informing verification agencies, banks and employers that the

qualification is registered on the NQF, but that the applicant is not

accredited to offer it. A perusal of the application and counter­

application reveals that SAQA does not deny these allegations, but is

of the view that it is entitled to hold this view and inform the public

accordingly

[36] ACE cites the .example of Ms Mahlalela who obtained the ACE

qualification during 2010, and subsequently enrolled for and obtained a

Bachelor of Psychology on 11 April 2014, enrolled for an internship

programme at the Mpumalanga Department of Education (the

Department). She was accepted on 1 August 2016, her internship was

however terminated and disciplinary action taken against her, because

she obtained the grade 12 certificate at SOT. It was stated by SAQA to

the Department that this institution is not recognised by SAQA and is

17

not accredited to offer the qualification. The information provided by

SAQA is in contradiction with the facts as set out above and must have

caused Ms Mahlalela a lot of embarrassment, and was clearly

prejudicial to her.

[37] ACE cites two further examples of learners who encountered problems

as a result of the aforesaid situation. Mr Reinhardt Eloff who obtained

his qualification on 30 December 2016 applied for a study loan from

ASSA, which was provisionally approved, but was then refused as

ABSA informed him that, according to SAQA, the qualification has

expired. The same happened to Ms Millicent Gilbert when she applied

for a study loan at ABSA.

[38] It was also brought to ACE's attention by other learners and parents

that SAQA was advising enquiries that the qualification was no longer

registered on the NQF, but no reference was made to the teach-out

phase which allows learners to complete the certificate by 30 June

2019, as was stated in the correspondence. Apparently more than

4 OOO learners are affected by SAQA's actions.

[39] The aforesaid resulted in the validity of the ACE certificate presented

being questioned, leaving these certificate holders in a precarious

position, and casting aspersions on the integrity of the qualification and

the credibility of the learners.

[40j The matter was brought to the attention of the director of Policy.

Stakeholder and Government Relation, Mr Mandia Mthemba, who

addressed an email to ACE on 22 December 2016, Mr Mthemba

stated that he wrote to Umalusi in April 2016 and attached a copy of

his communication to the email.

[41] In the email dated 5 April 2016, Mr Mthemba provided an explanation

of the current status of the qualification to Umalusi for the purpose of

public enquiries to Umalusi about the ACE qualification. It was

explained that:

"INFORMATION REGARDING THE ACE SCHOOL OF

TOMORROW COLLEGE ENTRANCE CERTIFICATE (CEC)

The Grade 12 ACE School Tomorrow College Entrance

Certificate (CEC) was registered with the South African

Qualifications authority (SAQA) on the national qualification

Framework at level 4, until 30 June 2015. The last date of

achievement for this qualification is 30 June 2019. This means

that the CEC qualification assumed its sunset phase as of 01

July 2015. The qualification will enjoy legacy status (just like the

DBE's Senior Certificate) beyond 30 June 2019 however

students will need to have completed the qualification by 30

June 2019. The above information can be verified on the SAQA

website by referring to the following link:

http;llqspe.saqa.oeg.zalviewQualificationslphp?id=17209. Students applying

for admission at South African Tertiary institutions will still need

to apply to the Senate of that University for admission as they

have always done before. You may contact the Accelerated

Christion Education (ACE) directly for more information at

031 573 6500. Thank you. "

[42] ACE alleges that if one proceeds to the SAQA website the qualification

is registered as a qualification that has passed the end date. It records

that the last date for achievement of this qualification is 30 June 2019.

[43] Despite the information on the SAQA website, and Umalusi's letter

dated 18 July 2014, SAQA is providing incorrect information to the

public and employers about the validity of the qualification, and by

doing so is obviously causing prejudice to learners who obtained the

ACE qualification. It would seem that SAQA is of the view, despite all

the evidence to the contrary, that it is within its right to act in this way.

[44] ACE approached the CEO of SAQA to clarify the position of SAQA

regarding the Entrance Certificate. The CEO responded in a letter

dated 10 February 2017. The CEO of SAQA stated that:

"For a provider of education and training to be able to legally offer

qualification on the General and Further Education Qualification Sub

Framework (GFETQSF) the following conditions must be met:

1. The provider must be registered as a provider with the

relevant provincial education department;

2. The qualification must be registered on the National

Qualifications Framework (NQF); and

3. The provider must be accredited to offer the qualification by

Umalusi, the Quality Counsel for the GFETQSF.

The School of Tomorrow has not been accredited by Umalusi to

offer the qualification and the qualification is no longer

registered on the NQF. 11

[45] The approach set out in this letter loses sight of the background and

context of this matter which clearly indicate that the ACE qualification

was registered with SAQA and is now in a teach out phase and is in

contradiction with the common cause facts.

[46] The CEO of ACE addressed a letter to the CEO of Umalusi on 15

February 2017. Umalusi was referred back to its letter dated 18 July

2014 wherein was stated that:

"In order to ensure that learners who are currently offering the

qualifications are not unduly disadvantaged by the phasing out of the

grade 12 Entrance Certificate, Umalusi will inform Provincial Education

Departments (PED), Higher Education South Africa (HESA) and the

South African Qualifications Authority (SAQA), that among other

things, the qualification will be phased out in 2019 . . . Further, that

present arrangements around the recognition of the Grade 12 College

Entrance Certificate should stand. 11

[47] ACE requested Umalusi to resolve the issue with SAQA but this did

not happen and this resulted in the main application.

[48] SAQA's attitude and opposition to the main application is difficult to

comprehend in the light of all the facts set out above. It is clear that

ACE registered and re-registered, with the blessing of SAQA, for 17

years and is now in the so-called "teach out phase". The qualification

offered by ACE was properly registered, and although it is past its end

date, may be offered until the last date of achievement which is 30

June 2019.

[49] The requirements for a final interdict to be granted are trite. The

Applicant must establish a clear right, an injury actually committed or

reasonably apprehended and the absence of an alternative remedy 1 .

In my view ACE established a clear right as SAQA registered and re­

registered the ACE qualification and is now in a teach out phase

despite that SAQA persists with informing the public incorrectly about

the standing of the ACE qualification. It is abundantly clear that

learners who obtained the ACE qualification are prejudiced by SAQA's

actions as is illustrated by the examples cited above.

[50] Regarding the third requirement, namely an alternative remedy, there

is no such remedy available to ACE. The argument by SAQA that it

can simply apply for accreditation with Umalusi has no merit as ACE

1 Setlogelo v Setlogelo 1914 AD at 227. These requirements have been consistently applied

in subsequent matters, see for instance Knox D'Arcy Ltd and others v Jamieson and Others 1995(2) SA 579(W) at 592H-593C

has chosen the teach out option, which was consented to by both

SAQA and Umalusi, and which is a legitimate and recognised option.

In the light thereof there is no obligation on ACE to re-register.

Consequently ACE made out a case for the relief sought. I will deal

with the appropriate order to be granted later on in the judgment.

POINTS IN LIM/NE RAISED IN THE COUNTER-APPLICATION

[51] ACE, as a point in limine to the counter-appl ication , contended that

the SOT's should be joined as parties to the counter-application. There

is no merit in this contention for the following reasons:

a) ACE was and is clearly acting on behalf of its member

schools.

b) The main application is based on the experiences of three

students from different ACE schools. The ACE schools

complained to ACE, who brought the urgent application for

relief on behalf of the learners and, by necessary implication,

the schools.

c) Apart from this, the papers reveal that all discussions and

negotiations regarding the accreditation of the ACE schools

were conducted by ACE on behalf of the ACE schools.

d) All correspondence regarding the accreditation of the ACE

schools have been exchanged between SAQA, Umalusi and

ACE. ACE has at all times acted on behalf of SOT;

e) ACE in the urgent application stated that the terms ACE and

SOT can be used interchangeably; and

f) ACE stated that it is entitled to bring a class action on behalf

of all learners who completed the ACE qualification. These

learners are learners from SOT.

[52] In any event, as a result of the conclusion arrived at the SOT's rights

will not be negatively affected by the order made. Consequently the

point in limine should be dismissed.

[53] ACE also raised the point that the application is premature in that

section 24 and 25 of the GFETQA Act was not complied with. This

point was not argued at the hearing and I take it that the point was

abandoned.

[54] However if I am not correct in my assumption, the following should be

considered. Section 24 and 25 specify the procedures to be followed in

relation to the withdrawal of accreditation of independent schools.

Section 24 reads as follows:

24

"24 Notification of accredited programmes. - (1) The Council must within

14 days of accrediting programmes in terms of the policy contemplated

in section 23-

(a) in the case of a private college contemplated in section 23(2)(b),

notify the registrar; and

(b) in the case of an independent school or a private centre

contemplated in section 23(2)(a) or (c), the relevant head of

department.

(2) The notification must indicate if any conditions are attached to

the accreditation and the nature thereof. "

[55] Section 25 reads as follows:

"25 Failure to comply with policy

(1) The Council must monitor private education institutions to ensure compliance with the policy contemplated in section 23 (1) .

(2) If a private education institution fails to comply with the policy, the Council must-( a) notify such private education institution in writing and set

out the nature and extent of the failure; and (b) determine a reasonable period within which the private

education institution must comply with the policy.

(3) At the expiry of the period contemplated in subsection (2) (b), the Council-( a) must evaluate the steps taken by the private education

institution to comply with the policy and take into account any submissions made by the education institution; and

(b) may affirm the accreditation of the private education institution or withdraw the accreditation as from a date specified by the Council.

(4) Before the Council withdraws an accreditation, it must notify the head of the department or registrar concerned, as the case may be, contemplated in section 24 (1) of its intention to withdraw the accreditation and of the date of the intended withdrawal".

[56] Section 25 of the GFETQA Act is inapplicable to the present set of

circumstances. There has been no termination or withdrawal of an

accreditation, because ACE concedes that it was never accredited.

[57] SAQA alleges that the "provisional accreditation" lapsed and was not

withdrawn. As a result this point in limine should also be dismissed.

COUNTER APPLICATION

[58] SAQA presents the motivation for the bringing of the counter­

application in the founding affidavit as follows:

"67. In addition, to prevent harm to existing and future students, the

Applicant seeks a mandatory interdict directing that ACE must-

67.1 cease to enrol new students for the ACE qualifications

until ACE has been accredited as an assessment body;

67. 2 inform all students who are currently enrolled for one or

more of the ACE qualifications ("the ACE learners'? that

ACE are not accredited by Umalusi. The Respondents

must explain the consequences thereof to the learners.

67.3 inform all ACE students that ACE is prohibited from

enrolling new students for the ACE qualifications until it

has been accredited by Umalusi."

[59] On a perusal of the papers it is clear that ACE never enrolled students,

SOT did that and the ACE certificate is in a teach out phase. ACE

merely provided an education programme, which programme leads to

the attainment of a qualification, namely the ACE Certificate. ACE

does not claim to be an educational institution, but the SOT's are

registered as educational institutions.

[60] ACE does not contend on the papers that new students may be

enrolled at SOT for the ACE Certificate, or the other two certificates

provided by it. Nor is there any allegation made by SAQA that ACE or

the SOT's are enrolling students contrary to the terms provided for and

to which the parties consented to. The last date for enrolment for the

certificates was 30 June 2016, and ACE admits that new students may

not be enrolled after that date. ACE states that current students have

been informed accordingly, and are aware of the fact that they,

because they enlisted before 30 June 2016, only have up to 30 June

2019 to complete their qualifications.

(61] It is clear from the facts set out above that qualifications conferred

upon learners up to 30 June 2016 were valid qualifications awarded to

the learners, and the validity of those qualifications cannot now be

denied by SAQA, on the premise that ACE was not accredited with

UMALUSI. ACE is not, nor ever was, an assessment body, this is also

confirmed by Umalusi. In the light thereof the relief sought by SAQA,

that ACE has been unlawfully operating as an assessment body is

difficult to comprehend. It is also difficult to understand why Umalusi

joined suit in the counter-application in the light of its own submissions

set out in the main application.

(62] The continuous re-registration of the ACE Certificates by SAQA on the

NQF, from 1998 to 2015 is common cause. Continuous interaction

between SAQA, and to a limited extent, UMALUSI on the one hand,

and ACE on the other hand, is also common cause. SAQA and

UMALUSI were at all relevant times fully appraised of all facts relating

to the ACE Certificate. They cannot argue at this point, and in the light

of the common cause facts, that they, for a period of 17 years allowed

ACE Certificates to be awarded unlawfully. Denial of the validity of the

ACE certificate is in direct conflict with the statements of the Deputy

Director of SAQA made on 5 September 2012 and referred to above,

as well as all the correspondence already referred to.

[63] SAQA's contention that since 15 September 2016 ACE Certificates

cannot be lawfully conferred upon learners is legally untenable in the

light of all the facts. If it should be correct, the purpose of the "teach­

ouf' phase would be jeopardised in totality, learners who enlisted for

ACE Certificates up to 30 June 2016, with SAQA and UMALUSI

approval, will be severely prejudiced, and the resolution by the SAQA

Board relating to the "teach-ouf' phase will be meaningless.

[64] SAQA contends that the provisional accreditation afforded to ACE

lapsed after a period of two years. In support of this contention it relies

on regulation 16 issued under the SAQA Act. In order to understand

the legal position, it is necessary to read the SAQA Act, NQF Act and

the Skills Development Act, Act no 97 of 1998 together.

[65) The SAQA Act, prior to its repeal by the NQF Act, provided for the

establishment of SAQA to oversee the development and

implementation of the NQF, as well as the registration or accreditation

of bodies responsible for establishing education and training standards

for qualifications, and the assignment of functions to them.

[66] The Skills Development Act, provides in chapter 3 for the

establishment of Sector Education and Training Authorities (SETAS)

--

for any national economic sector. Service providers were accredited by

the Education and Training Quality Assurance Bodies (ETQA's) in

terms of regulation 12 of the ETQA regulations issued under the SAQA

Act. The Skills Development Act was amended with effect from 6 April

2009 to provide for a Quality Council for Trades and Occupations

(QCTO) which must perform its functions in terms of the Skills

Development Act and also the NQF Act.

[67] The NQF Act commenced on 1 June 2009 and repealed the SAQA

Act. Despite the repeal of the SAQA Act, the regulations issued in

terms thereof remain in force. The SAQA Act formally provided for the

three quality councils, namely -

67.1 Umalusi;

67.2 the Quality Council for Higher Education; and

67. 3 the QCTO

[68] Regulation 16( 1) of the ETQA regulations provides that:

"If the Education and Training Quality Assurance Body to whom

application for accreditation is made, is of the opinion that a registered

provider ·or a provider seeking conditional registration does not

meet all the criteria for accreditation, then such Education and Training

Quality Assurance Body may grant such provider provisional

accreditation for an agreed period of time, not exceeding 2 years,

during which it shall undergo a programme of development agreed by

the Education and Training Quality Assurance Body which is

designated to enable it to meet the required criteria for accreditation:

Provided that, in the opinion of the Education and Training Quality

Assurance Body the interests of the learners are protected during the

implementation of the programme of development." (Court's emphasis)

[69] Regulation 16 envisages an application for accreditation being made

by a provider seeking registration or conditional registration, where the

provider does not meet all the criteria for accreditation.

[70] ACE is not a provider, the SOT's are, as is also confirmed by Umalusi.

ACE never applied to an ETQA for accreditation. Provisional

accreditation was granted to SOT's as part of the teach-out phase that

was automatically triggered when ACE decided not to re-register the

qualification on the NQF.

[71] In the circumstances where provisional accreditation was not granted

as a result of an application by ACE for accreditation, it follows that the

limitation of 2 years for which provisional accreditation may be granted

in terms of regulation 16, does not apply to the situation.

[72] SAQA contends in the alternative that the provisional accreditation

lapsed after the expiry of one year in accordance with the Umalusi

Policy and Criteria.

[73] However, the provisions of the relevant section of the policy reads as

follows:

"Independent schools that are granted provisional accreditation are

required to address areas of partial compliance within a period not

exceeding one year."

[7 4] Provisional accreditation is in terms of this policy granted to

independent schools and not to ACE. The section does not stipulate

that provisional accreditation is for one year only. It provides that

provisional accreditation may be granted for a period of one year to

address issues relating to partial compliance. The provisional

accreditation granted to the SOT's was not granted on the basis of

partial compliance and to afford the schools the opportunity to remedy

non-compliance. Provisional accreditation was granted in order to

complete the teach-out phase that was automatically triggered when

ACE decided not to re-register the qualification on the NQF.

[75] As a result no case was made out for the relief sought by SAQA and

Umalusi in the counter-application and as a result the counter­

application should be dismissed.

COSTS

[76] The main application was initially launched on 3 March 2017 and set

down for 28 March 2017 in the urgent Court. SAQA was given until 14

March 2017 to file their affidavits. SAQA failed to do so and

consequently the papers were not filed timeously and in accordance

with the practice directive pertaining to the urgent applications. This led

to the matter being struck from the roll.

[77] I am of the view that ACE was aware of the existing problem since at

least December 2016 but waited until March 2017 to launce the

application and gave SAQA and Umalusi very little time to file

opposing papers prior to the 28 March 2017 hearing. This resulted in

the matter being struck from the roll due to lack of compliance with the

practice directives. As a result the wasted costs occasioned by the

appearance on 28 March 2017 should be paid by ACE.

[78] The matter was then re-enrolled for a second time on 4 April 2017, but

SAQA applied for leave to file a supplementary affidavit, which led to a

postponement as ACE wanted to file an answer to the supplementary

affidavit. This postponement was caused by SAQA and as a result the

wasted costs of 4 April 2017 should be paid by SAQA.

[79] The matter was then enrolled for 18 April 2017 again on the urgent

court roll. On this occasion the learned Judge struck the matter from

the roll , counsel informed me it was this time struck of the roll because

the papers were too voluminous.

[80] In the light of the fact that leaners' rights were compromised by

SAQA's actions I am of the view that there was some urgency in the

matter and as SAQA's actions necessitated the bringing of the

application in the Urgent Court SAQA must pay the wasted costs

occasioned by the appearance on 18 April 2017.

(81] ACE conceded that there was no indication that Umalusi was at all

involved in the actions that led to the launching of the main application.

In the light of the aforesaid ACE must pay all Umalusi's costs

pertaining to the main application, apart from the costs orders made

with reference to 4 April 2017 and 18 April 2017 which costs must be

paid by SAQA.

[82] The rest of the costs of the main application should be paid by SAQA.

The costs of the counter-application should be paid by SAQA and

Umalusi jointly and severally.

CONCLUSION

34

[S-;;sJ In the light of all the circumstances ACE made out a case for the

granting of a final interdict. I am however of the view that more clarity

should be given pertaining to the status of the ACE qualification, in the

interest of the learners, and to avoid any further confusion, therefore I

ask counsel for all parties to propose draft orders which I considered

before making an order. The order that I make seeks to clarify the

val idity of the ACE qualification and the position of the learners who

obtained the qualification.

[84] I make the following order:

84.1 It is declared that the Applicant's qualifications (Grade 12

Certificate) awarded by independent schools to learners at

any date ·prior to this order is registered and is a valid

qualification;

84.2 It is declared that the Applicant's qualification presently

being offered by independent schools to learners, who had

enrolled for the learning programmes leading to the

qualification before 30 June 2016, is a qualification

registered on the National Qualifications Framework as a

qualification that has passed its end date. i.e with the last

date for enrolments being 30 June 2016 and the last date

for achievements being 30 June 2019;

84.3 The Frist Respondent is interdicted and restrained from

informing the public anything different than what is

provided for in paragraphs 1 and 2 above;

84.4 It is declared that Applicant's qualification offered through

independent schools have never been assessed by

Umalusi, or an accredited assessment body and

Applicant's qualifications therefore do not comply with the

2012 and 2017 policies issued by Umalusi, which fact does

not impact on the validity or registration of the

qualifications, and consequently the qualifications already

obtained and to be awarded to learners who had enrolled

for the learning programmes leading to the qualifications

before 30 June 2016, will have the same status as the

qualifications had before 30 June 2015, and should be

treated accordingly;

84.5 The points in limine raised in the counter-applications are

dismissed;

84.6 The counter-application is dismissed;

84,7 The wasted costs occasioned by the postponement/striking

from the roll on:

(i) 28 March 2017 to be paid by Applicant;

(ii) 4 April 2017 and 18 April 2017 to be paid by First

Respondent; and

84.8 Apart from the costs referred to in para 83.6 First

Respondent is ordered to pay Applicant's costs in the main

application;

84.9 Apart from the costs referred to in par 83.6 Applicant is

ordered to pay Second Respondent's costs in the main

application;

84.1 O First and Second Respondents jointly and severally the one

paying the other to be absolved to pay the Applicant's

costs of the counter-application; and

8.11 All the costs to include costs of two counsel where so

employed.

# ~ ~ R G TOLMAY

JUDGE OF THE HIGH COURT

ffE OF HEARING: 21 AUGUST 2017

HE OF JUDGMENT: 17 OCTOBER 2017

ITORNEY FOR applicant: HURTER SPIES INC

DVOCATE FOR APPLICANT: ADV JG BERGENTUINS (SC) & J L SASSON

.DORNEY FOR 15T RESP: WEBBER WENTZEL

\OVOCATE FOR 15T RESP: ADV A GOVENDER & ADV E WEBBER

~DORNEY FOR 2 ND RESP: MACROBERTS

ADVOCAE FOR 2 ND RESP: ADV AG SOUTH (SC)