THE COURT OF APPEAL OF LESOTHO
OF A (CIV) 8/08
the matter between:
: 9 October 2008
Delivered : 17
Education – student
failing one subject in Diploma course at technical institution –
regulations governing minimum marks
for passing commercial Diploma
courses – regulations require students to pass examination but
also to pass ‘Continuous
regulations – Continuous Assessment to consist of minimum of
three tests – four tests written –
entitled to consideration of three best marks – whether
instructor free to decide which scores to take into
whether assessment limited to three scores or all four scores.
– all four scores had to be considered. On that basis the
student still failed.
 The appellant,
a student for the Diploma in Business Studies in her final year at
the respondent institution, was held to have
failed the course in
Operations Management in the academic year 2006 – 2007. She
was required to repeat the course the following
year. Aggrieved, she
applied in the High Court for an order declaring unlawful the
respondent’s decision that she repeat
the course. She further
sought an order declaring that she had passed the course and was
entitled to the award of the Diploma.
 The High Court
(Monapathi J) held that the relevant decisions according to which the
appellant had failed and was required to
repeat her course were made
in the exercise of a discretion which educational institutions have
as regards course structuring and
the assessment of a student’s
performance. It was not for the court to intrude in that sphere.
The application was dismissed.
 The respondent
annually publishes a comprehensive guide for students entitled
‘Student Handbook’. It is common
cause that it is an
authoritative document and that the regulations it contains are
binding on the respondent and students. The
decision of this matter
depends on a proper interpretation of one of those regulations under
FOR THE ASSESSMENT OF THE COMMERCIAL DIPLOMA COURSES’.
 To pass a year
a student must achieve a combined mark of 50% in each subject. A
combined mark means a mark based on a 60:40
weighting between the
final examination mark in each subject and the mark for Continuous
Assessment in that subject, respectively.
(Regulation 22.5.3 and
Assessment is a process applied during the year (or semester). That
topic is dealt with in regulation 22.3. It
is appropriate to quote
the relevant provisions of the subregulation:
minimum number of tests required per subject will be three (3).
22.3.2 The minimum
pass mark for an assessment will be 50% in each subject.
average mark for all assessments in each subject must be a minimum
of 50% by the end of each term or date predetermined
Except due to
malpractice, if the overall average mark for all assessments in
each subject is below 50% (but above 40%) a
(the type of which to be determined by the School) will be set in
order that the student may improve the
mark up to the recommended
minimum. If at the second attempt the minimum mark is not
achieved then the higher mark of the
two attempts will be carried
In a situation
where a student fails Continuous Assessment in any subject, he/she
may be allowed to write the examination.
A score from such an
examination will not make a student pass the subject, but can
improve the transcript.
overall average mark for Continuous Assessment at the end of the
year in any one subject must be 50% in order
 In terms of
regulation 22.2.7 a student guilty of malpractice in an ‘incourse
assessment’ will be awarded zero.
 In the
academic year in question the course instructor (who deposed to the
opposing affidavit) set five pieces of work to constitute
continuous assessment in Operations Management. First, there was
what she calls an ‘assignment’.
Because most of the
students copied each other’s work she decided to ignore
everyone’s marks. Then followed, at intervals,
Finally there was a group project.
 The appellant
was guilty of malpractice in the first test and scored zero. She
accepts that as her due. In the second test
she scored 32%, in the
third 70% and in the group project 69%.
 The course
instructor, in determining the appellant’s Continuous
Assessment mark, considered she was obliged to work on
scores and that it was in her discretion which scores she chose. The
appellant accepts that only three scores are to
be taken into account
but contends that she was entitled to have her three best marks taken
 On the course
instructor’s approach the relevant scores were 0, 70 and 69,
the average of which, being below 50%, resulted
in the appellant’s
failing Continuous Assessment.
 In the light
of regulation 22.3.5 she was allowed to write the final examination
in Operations Management. She said in her
founding affidavit that in
the examination she ‘did well’. Before us it was alleged
by her counsel, but not admitted
by counsel for the respondent, that
her examination mark was 65%. Be that all as it may, the
subregulation clearly says that passing
the examination will not mean
passing the subject. Therefore the focus here has to be on the
appellant’s marks in respect
of Continuous Assessment.
 On the
appellant’s contention her average based on her three best
marks (32%, 70%, and 69%) was over 50% and she consequently
the minimum required by regulation 22.3.6.
 I must say
that I disagree with the respective approaches of both parties.
There is nothing in regulation 22.3 which says,
or even implies, that
where more than three tests are written the student is entitled to
consideration of the three best scores.
(I should add - tests or
pieces of work equivalent to tests, such as the group project, which
both parties accept fell to be considered
and, for that matter, the
first assignment which would, I infer, have been considered had there
not been large scale malpractice).
Nor is there any implied
limitation which confines the assessment to three scores at all,
whether the three best or any three.
 Each student
has a right to education. The institution’s obligation, which
is the converse of that right, is to apply
reasonable measures to
assess the individual student’s ability and progress. If the
instructor in a particular subject considers
that it is, in
fulfilment of that obligation, necessary or appropriate to set more
than three tests then all the scores should
be considered. The only
qualification I envisage is where the instructor sets a further test
to compensate for an earlier one
which the instructor recognizes was
unfairly difficult or which for some other adequate reason warrants
its being ignored (as in
the case of the first assignment). That
brings me to the approach which the instructor in this case explained
in the opposing
instructor’s affidavit contains the following statements –
‘. . . I
only considered if most students exceeded the average mark in each
piece of work and I also considered the general overall
of students. This kind of exercise is not individualized in the
sense that if I decide to use a particular piece of
work I do not
select the best marks of a student from any piece of work. As long
as the overall class performance and the average
mark are good I use
that piece of work for assessment purpose.
. . .
suggested approach . . . would lead to absurdity and be irrational.
I must add that issues relating to
which piece of work is to be used
for continuous assessment are in our entire discretion as teachers as
long as we act rationally.
The . . . test
where she obtained a zero mark was used because I used the overall
performance of the whole body of students and
the average mark of the
class was fairly good.
I do not have to
look for individual marks and start picking the best out of the five
pieces of work for each student. This would
be irrational and
unreasonable and allow a sense of bias. Of course I admit that what
I did is not without some weaknesses’.
 At the outset
it must be emphasised that in the sphere of administrative law it is
wrong to speak of an ‘entire discretion’.
emphasized by the learned Judge a
with reference to Adelaja
Otubanjo v Director of Immigration
C of A (Civ) 35/2005 (unreported, delivered on 11 April 2006) at p.9.
(And see, also, Students
Representative Council of the University of Botswana vs The
University of Botswana,
Appeal no. CAPP 1/89 (unreported)). The instructor in effect
afforded recognition to this principle by referring, almost in the
same breath, to the need for action that is rational. Indeed so. If
the exercise of a discretion were irrational it could well
reviewable in law.
 As to the
suggestion that a student is entitled to selection, out of more than
three scores, of only the best three, the instructor’s
criticism is, in my view, supportable. If more than three tests (to
use a term of convenience) are written, and assuming that
be ignored it would be misleading for all concerned, and unduly
favourable to the student, to take only the student’s
best scores. If a piece of work constitutes a fair and reasonable
test of ability and progress and the student concerned
that result is just as much a necessary element of a proper
assessment of the student’s worth as the student’s
 Having said
that, I consider the instructor’s approach to be flawed where
she focuses on the general overall class performance
at the expense
of the individual. The institution’s obligation is not to
implement a group assessment but an individual
assessment of each
student. The instructor’s approach in this case might tend to
invite the question whether she was concerned
about how the overall
class performance might reflect on her as its instructor. She need
have had no fear in that regard if the
students were fairly assessed
on their own individual performances and all test scores were
considered. There is no disadvantage
in knowing the truth and an
innately poor class will probably achieve poor marks however much the
 The approach
that every test score must be considered is not only consonant with
the terms of regulation 22.3 but frees the
instructor of the problem
of which score to take into account and avoids the misleading
selection of only the best.
 It follows
that on a proper interpretation of its text, read in context,
regulation 22.3 requires all tests to be considered
in determining a
student’s Continuous Assessment overall average in a particular
subject. At the risk of repetition I emphasize
that it would be fair
and reasonable to ignore the results of a particular test provided
adequate reason exists to disregard that
test and provided the scores
of the whole class in that test are disregarded.
 Applying this
interpretation, the appellant’s scores were 0, 32, 70 and 69.
That is a total of 171 the average of which
is just under 43%. She
therefore failed Continuous Assessment and the application fell to be
dismissed but for reasons different
from those of the court a
 The appellant
applied to file additional grounds of appeal. The initial grounds
were wide enough, in my view, to encompass
what the additional
grounds contend for. In any event the appellant was allowed to argue
the case on the basis that the additional
grounds were filed from the
start. The costs of the application must be paid by the appellant.
 The Court’s
order is as follows:
The appeal is
dismissed with costs.
The appellant is
to pay the costs of the application to file additional grounds of
C. T. HOWIE
the Appellant : Adv. L. A. Mofilikoane
the Respondent : Adv. Q. Letsika
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