Judgment No. HB 48/14
Case No. HC 1404/12
HERBERT SITHOLE
VERSUS
PHARMACEUTICAL COUNCIL OF ZIMBABWE
IN THE HIGH COURT OF ZIMBABWE
MAKONESE J
BULAWAYO 11 MARCH AND 20 MARCH 2014
Ms Mundopa for the applicant
Mr N. Ndlovu for the respondent
Opposed matter
MAKONESE J:
The setting of examinations and the marking of examination
scripts for any course leading to a Certificate, Diploma or Degree programme is regulated by the
Institution concerned, such institution or body deriving authority to conduct and mark
examinations from an Act of Parliament. The courts generally do not intervene in disputes
relating to the marking of examination papers as the institutions responsible for the conduct of
examinations are themselves self-regulating bodies established by statute.
It is therefore
undesirable and indeed unusual for the courts to intervene as umpire in the resolution of disputes
relating to examination results.
As a general rule where an individual’s rights have been
infringed or violated or where there is unfairness an individual may seek redress from the courts
as against an Examination Body or Institution.
The Applicant’s claims as set out in the Draft Order are as follows:
“1.
2.
3.
4.
That the application be and is hereby granted.
An order to permit the Applicant to see and verify the scripts is hereby granted.
An order for a private independent pharmacist to remark the papers to be
nominated by Applicant and Respondent in consultation be and is hereby granted.
Respondent to pay costs of suit.”
At the hearing of the matter, and after hearing brief oral arguments from both parties I
dismissed the matter with costs on an attorney and scale and indicated that my full reasons would
follow. These are my reasons.
The facts of the matter are that the Applicant was employed at Datlabs, Bulawayo as a
Pharmaceutical Technician. Sometime in 2005 his employer took a decision to sponsor him to
enrol for a Pharmacy Technician Diploma programme. Applicant registered with the school of
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Pharmacists Technicians on 26th January 2005. The lectures for the programme were conducted
at Harare Polytechnic for both oral lessons and practicals. The registration was for a Trainee
Pharmacist Technician. At the end of 2005 Applicant wrote examinations under (HEXCO),
Higher Education Examination Council for the Certificate for Pharmaceuticals Technology. The
Applicant passed all the eight subjects. In the second year Applicant sat for five subjects and he
passed all subjects at the same sitting. The third and final year was set and marked by the
Pharmaceutical Council of Zimbabwe. The Applicant was in his third year in 2007. He sat for
six subjects and the result was that Applicant failed all subjects and only passed one subject. The
Applicant was dismayed by the outcome and queried the results with the Pharmaceutical
Council. The Council maintained that Applicant had failed the examination. The Applicant
wrote further examinations in 2008. He only passed two subjects. The Applicant took the issue
up with the Registrar of the Pharmaceutical Council. He demanded to be given access to the
examination scripts. Applicant’s employers pleaded with the Respondent to allow them to view
the Applicant’s results and after some delay the Applicant’s employers were allowed to examine
the Applicant’s examination scripts. It is the Applicant’s contention that the conduct of the
Respondent was unfair and not transparent.
The Applicant avers that the conduct of the
Respondent is not above board and that the court should make an order compelling the
Respondent to allow the Applicant to verify the examination scripts. The Applicant further
argues that an independent pharmacist must be nominated to re-mark the examination scripts.
Ms Mundopa appearing for the Applicant failed to articulate any meaningful argument in
support of the application. Any legal practitioner in her position would not have been expected
to make sensible arguments in support of this application.
Mr N. Ndlovu for the Respondent filed fairly detailed Heads of Argument. The issues
that were set out in his Heads as being critical to the determination of this matter were as
follows:
“1.
2.
Whether it was competent for the applicant to be granted a court order permitting
him to see and verify his November 2008 Final Examination scripts.
Whether the said Examination scripts should be remarked by an independent
pharmacist.”
Before I deal with the issues set out above I must observe that this application is rather
unusual. Our courts do not have any place in determining the conduct of examinations and the
marking and verification of examination results. In this country there are various bodies and
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institutions established by statute to regulate the qualification of persons into various bodies or
institutions. The standards for the setting, marking and verification of results vary from one
institution to the other. In the present application, the Respondent is regulated by the Health
Professions Act [Chapter 27:19]. Section 136 of the Act provides as follows:
“Without derogation from any other law, whenever the Authority, a council, a committee
or a register exercises any function under this Act which has or may have an adverse
effect on the practice or rights of any health practitioner, the Authority, Council,
committee or registrar shall ensure that it or he, as the case may be, observes the rules
commonly known as the rules of natural justice and, in particular, shall ensure that the
Health practitioner concerned is afforded an adequate opportunity to make
representations in the matter to the Authority, the council, committee or the registrar, as
the case may be.”
In my view the Respondent bent back over-backwards to accommodate the requirements
of the Applicant. Upon receipt of the Applicant’s letter of complainant on 22 January 2009, the
Respondent verified the Applicant’s examination scripts and matched the handwriting thereon
and checked for anomalies. None were found. The Respondent went further to have an
independent moderator to inspect the examination scripts. No anomalies were found. The
Respondent was not obliged in my view, to allow the Applicant to inspect his examination
scripts, for doing so would amount to the Applicant marking his own examination papers. This
would set a very dangerous precedent and open floodgates for disgruntled numbers of society to
demand an inspection of their examination scripts whenever they were unhappy about their
results. Most institutions and examination bodies are self-regulatory and have checks and
balances to ensure fairness and transparency.
It is common cause that after the Applicant’s employers piled pressure on the Respondent
to comply with his demands, the Respondent addressed a letter dated 17th August 2011 to
Applicant’s employers in the following terms:
“The above matter refers.
The Education and Liason Committee, at its fourth meeting which was held on 4 August
2011 received and considered your request that Mr Herbert Sithole be permitted to
repeat the Pharmacy Technicians Final Examinations for the third time. Regrettably, the
Committee did not approve your request that Mr Sithole should be accorded a third
chance to repeat the examination.
The Committee resolved that he could reapply for admission into the Pharmacy
Technician Training course, if he wished.
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Yours faithfully
PHARMACISTS COUNCIL OF ZIMBABWE
A. Karonga
Registrar.”
The Applicant declined the offer to reapply for the Pharmacy Training course and I
cannot understand how the court can be requested to grant the order sought.
It is evident that the requirements of fairness in terms of section 136 of the Health
Professions Act have been esablished in this case. The examination scripts were marked and
moderated, and further verified upon receipt of Applicant’s complainant. The fact that Applicant
is not permitted to have sight of the scripts does not vitiate the compliance with fairness
requirement. What is sought to be verified is that the marks recorded were those obtained by the
Applicant and this is what occurred. The Applicant’s employers had sight of the examination
scripts. The fact that the Applicant does not like the outcome of the examinations does not
constitute unfairness. There are no legal or practical grounds for allowing the Applicant to have
sight of the examination scripts and to have them remarked by an independent pharmacist.
There is no provision in the Health Professions Act and the Pharmacy Technicians (Training)
Regulations, 2000 for allowing such a procedure. The Applicant must and should be aware that
the standing practice is to refuse to avail marked answer scripts for the Final Examination to
candidates. As I have already indicated, granting the order sought would set an unusual and
dangerous precedent where every candidate who is dissatisfied with their results would demand
to see the examination scripts and have an independent pharmacist mark them.
This is
undesirable and it would throw the entire process of marking and releasing results into disarray.
The certainty and finality of examination results would be compromised and abused by
candidates. The granting of the order sought would place an unnecessary and onerous burden on
the Respondent. The examiners who conduct the marking of examinations are appointed in
terms of section 13(1) of the Pharmacy Technicians (Training) Regulations and are registered
pharmacists or other suitable persons with relevant qualifications. It is highly unlikely therefore,
that any independent pharmacist proposed by the Applicant would come up with a different
result. I, find no merit in this application, a position supported by the finding in Metsola v
Chairman, Public Service Commission and Another 1989 (3) ZLR 147(S), where the court held
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that the criteria is one of fundamental fairness and for that reason the principles of natural justice
are always flexible. In casu, the Applicant failed to establish any unfairness on the part of the
Respondent. I awarded costs on the punitive scale for the reason that the application was clearly
ill founded and an abuse of court process. The Applicant ought to have taken the offer given to
him to re-apply for the programme and by this date he would have sat for the Final
Examinations.
I, accordingly dismissed the application on an attorney and client scale.
Legal Resources Foundation, applicant’s legal practitioners
Chihambakwe, Mutizwa and partners, C/o Cheda & partners, respondent’s legal practitioners
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