Unicaf University V Zimbabwe Council FOR Higher Education

### Preamble
1
HH 723-25
HC 265-23
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UNICAF UNIVERSITY

Versus

ZIMBABWE COUNCIL FOR HIGHER EDUCATION

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

HARARE 1 July 2025 & 13 November 2025

Court application to set aside an administrative decision

O. Kondogwe for the applicant

S. R. Paswani for the respondent

DUBE-BANDA J:

[1] This is a court application to set aside an administrative decision in terms of s 4 of the Administrative Justice Act [Chapter 10:28].

[2] The applicant (“UNICAF”) describes itself as a pan-African, independent, internationally recognized University licensed in various countries, with its headquarters in Cyprus. The respondent (Council) is a corporate body, capable of suing and being sued in its name, responsible for the registration and accreditation of institutions of higher education in Zimbabwe

[3] The applicant seeks an order in terms of s4 of the Administrative Justice Act. The order sought is couched as follows:

That the decision of the respondent dated 15 November 2022 refusing to renew the applicant’s provisional registration licence be declared unlawful and is hereby set aside.

That the respondent be and is hereby ordered to issue the applicant with a provisional registration licence in terms of s 11 of the Zimbabwe Council for Higher Education Act [Chapter 25:27] within 14 days of the granting of this order.

That in the event of failure by the respondent to comply with paragraph 2 above, the provisional registration licence shall be deemed to have been granted.

Respondent shall pay costs.

[4] The application is opposed.

Factual background

[5] In summary, the background to this matter is the following. The applicant is a University, and on 20 September 2018, it applied for a provisional registration licence in terms of the provisions of the Zimbabwe Council of Higher Education Act [Chapter 25:27] (“the Act”).  On 10 October 2019, and in terms of s11 of the Act, the respondent granted the applicant a two-year provisional registration certificate.  The provisional registration certificate was granted on the following conditions:

That the applicant proceeds to apply for the accreditation of the programmes it intends to offer in Zimbabwe.

That the applicant demonstrates evidence of the promised investment in Open Distance electronic Learning (ODeL) infrastructure.

That applicant works together with the Zimbabwe Open University (ZOU) so as to eliminate negative competition.

That the applicant assists ZOU in developing its institutional capacity in all aspects of ODeL.

[6] In addition, it was a condition of the provisional registration that once the conditions had been met, the applicant was expected to apply for full registration either at the expiry or during the subsistence of the provisional registration.  The provisional registration expired on 9 October 2021.    Before its expiry, and on 5 October 2021, the applicant sought a renewal of the provisional registration. On 10 January 2022, the respondent advised the applicant that it had considered the application for renewal, but it was not granted. Following further engagements between the parties, and on 30 March 2022, the applicant again sought a renewal of the provisional registration, which by then had expired. On 25 April 2022, the respondent informed the applicant that its request would be presented to the Council for its consideration. On 15 November 2022, the respondent informed the applicant that its application for renewal of the provisional registration was considered and denied.

[7] The applicant is aggrieved by the denial to renew its provisional registration, and this application seeks to challenge that decision. It is contended that in denying to renew the provisional registration, the respondent has not acted lawfully, reasonably, and fairly, and not in good faith as required in ss 3(1)(a), 3(2)(b), and 5 of the Administrative Justice Act. It is against this background that the applicant sought the relief stated above.

Submissions by the parties.

[8] in summary, the applicant contends as follows: that the period between the granting of the provisional registration on 10 October 2019 and its expiry made substantial progress despite challenges, which included the Covid 19 global pandemic and the conduct of the respondent. The applicant further contends that it has made substantial steps from the time the provisional registration was granted, in that it expended financial resources in employing staff and other third-party engagements. It argues that it will be seriously prejudiced both financially and in other aspects if it is not provisionally registered.

[9] The applicant further argues that the decision denying provisional registration is not lawful, reasonable, fair, prompt, efficient, impartial, proportionate, and or procedurally fair. Further argues that the decision is not lawful in that it does not fall within the requirements for provisional registration in s 11(1) of the Act. It is argued further that the respondent in denying to issue a provisional registration proffered reasons which are only relevant to an application for final registration in terms of ss 19 and 11(6) to 11(8) of the Act. It is contended that at this stage, the respondent has no jurisdiction to decline a provisional registration licence on the grounds such as governance and academic issues, which the contested decision is predicated on. These issues are said to relate to final registration. The applicant contends that the decision is grossly unreasonable and irrational, and is tainted with the absence of objectivity and shows bias. It is on this basis that the applicant sought that its application be granted.

[10] In summary, the respondent contends as follows: that indeed the applicant was issued with a provisional registration which expired on 9 October 2021. It is argued that the initial provisional registration granted to the applicant had conditions, given in terms of s 11(3) of the  Act. It was contended that the applicant failed to meet the conditions of the initial provisional registration. On 5 October 2021, it applied for a renewal, which was denied on 10 January 2022. The denial was predicated on the recommendations from the Higher Education and Quality Assurance Committee (“HEQAC”). The applicant is said to have made a further application, without addressing the issues that led to the denial of its 5 October 2021 application. Council met and upheld the recommendations of HEQAC. The applicant is said to have failed to satisfy the respondent on aspects highlighted in s 11(1), particularly s 11(1)(c).

[11] The respondent contends further that the fact that the applicant had been granted provisional registration before does not automatically entitle it to a renewal of its registration. It is argued that a provisional registration is not granted on the mere asking; it is granted if the respondent, after an evaluation in terms of s 10 (3) of the Act, is satisfied that the requirements listed in s 11(1)(b)-(d) have been met. It is contended that the applicant failed to meet the conditions set out in its initial provisional registration. It is further submitted that the applicant failed to provide programmes that could be accredited by the respondent. It is stated that all tertiary educational institutions in Zimbabwe are obliged to have programmes that comply with the heritage-based education 5.0 policy of the government. However, the applicant’s programmes are simply plucked from their UNICAF FEDERAL, which is based in Cyprus, and it is failing to tailor them to suit the demands of the Zimbabwean education policy. It is contended that it was for these reasons that the renewal was denied, even though the initial application was granted. The respondent sought that the application be dismissed.

Application of the law to the facts.

[12] For the purposes of completion and clarity, I shall reproduce the material part of the letter dated 15 November 2025, embodying the decision sought to be challenged in this application. It is this:

“Re: INICAF Zimbabwe application for renewal of provisional registration in Zimbabwe

The ZIMCHE Council met on 23rd September 2022 and deliberated on UNICAF Zimbabwe’s application for renewal of provisional registration. The Council resolved to deny the renewal of INICAF Zimbabwe’s provisional registration. Since the discussion held during the physical assessment meeting on 9th September 2021, at UNICAF Zimbabwe’s boardroom, the situation has remained the same. The Council decision was based on the following:

A. Governing Issues

A1. Governance issues

UNICAF Zimbabwe has not demonstrated any significant steps towards complying with the conditions set out in s 19 of the ZIMCHE Act.

UNICAF Zimbabwe needs to resolve the issue of its identity, its relationship with UNICAF Federal, and other UNICAF centres all over the world.

UNICAF Zimbabwe is therefore not expected to carry out any academic activity in Zimbabwe as it is not accredited by the Zimbabwe Council for Higher Education.

Please feel free to get back to us.”

[13] The applicant argues that the reasons given by the respondent for its denial to grant provisional registration are not lawful, because they do not fall within s 11 of the Act. In other words, the submission is that the respondent treated the application as if it were an application for final accreditation. I do not agree. The Act does not provide for a renewal of a provisional registration that has expired. It is for this reason that the respondent, and rightfully so, treated it as a fresh application. The respondent noted that the applicant had not met the s 11(1) requirements, particularly s 11(1) (c), which says:

“Where the Council is satisfied that—

(c) the private institution, when established, is likely to attain and maintain standards set out in accordance with Part V on a long-term basis;

it may provisionally register the applicant until such time as it is finally registered in terms of subsection (8) and issue to it a provisional registration certificate.” (My emphasis).

[14] It is apparent that s 11(1)(c) is forward-looking, in that the Council may provisionally register an institution of higher learning, if satisfied that when established, is likely to meet the requirements of Part V of the Act. In other words, the Council may provisionally register an institution when satisfied that it will meet the requirements of final accreditation as spelt out, particularly in s 19 of the Act, which says:

“(1) An institution of higher education shall be issued with a certificate of accreditation if it demonstrates the achievement of acceptable standards in terms of physical, human, financial, and material resources, management and operational procedures, and an acceptable standard of academic life focusing on teaching, research, and public and expert service.

(2) For each programme, the accreditation process may take into account—

the academic qualifications for all members of staff employed by the higher education institution during the period assessed and those expected to be employed by the higher education institution;

the total number of students that have been enrolled in each programme of instruction offered at the institution of higher education and the standards attained by those who have graduated during the period assessed;

Information and Communication Technology infrastructure and provision for training;

the size and quality of the library and equipment, which have been developed;

the financial resources that are available for the exclusive use by the institution of higher education, certified by its auditors;

the physical facilities, including land, that are available for the exclusive use by the institution of higher education concerned.”

[15] Therefore, the respondent may provisionally register an institution that has taken significant steps to meet the s 19 requirements and may deny to provisionally register one that has not done so. It was lawful for the respondent to deny provisional registration on the grounds that the applicant had not demonstrated any significant steps towards complying with the conditions set out in s 19 of the Act. Therefore, the submission that the respondent misconstrued the application for provisional registration as if it were for final registration is incorrect. The respondent understood that it was dealing with an application for provisional registration and dealt with it in terms of the requirements of the law.

[16] This is a case in which the notion of deference applies in full measure. This is so because the applicant seeks that the decision of the respondent, an administrative body, be declared unlawful and set aside; and that the respondent be ordered to issue the applicant with a provisional registration licence in terms of s 11 of the Act; and that in the event of failure by respondent to issue the licence, the provisional registration licence be deemed to have been granted. Mr Kondogwe, counsel for the applicant, made a half-hearted application to amend the draft order; it was too little and too late.

[17] The principle of deference concerns the function of a court in mediating between the law and the functions of administrative bodies. The principle recognises the need to protect the decision-making of administrative bodies in a manner that will prevent their ability to discharge their administrative role from being undermined. At times, courts will have to intrude to some extent on the terrain of administrative bodies, however in doing so, the courts must remain sensitive to the legitimate interests of these bodies and intrude as little as possible in the terrain of such bodies. A court should be careful not to attribute to itself superior wisdom in relation to matters legislatively entrusted to administrative bodies. A court should thus give due weight to findings of fact and policy decisions made by those with expertise and experience in the field. See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 4 SA 490 (CC); Kirstein v Registrar General & Ors 2019 (3) ZLR 1275 (H).

[18] In Premier of Mpumalanga v Executive Committee of State-aided Schools, Eastern Transvaal 1999 2 SA 91 (CC) para 51the court put it thus:

“The extent to which a court should give weight to these considerations will depend upon the character of the decision itself, as well as on the identity of the decision maker. A decision that requires an equilibrium to be struck between a range of competing interests or considerations, and which is to be taken by a person or institution with specific expertise in that area, must be shown respect by the courts. This does not mean, however, that where the decision is one which will not reasonably result in the achievement of the goal, or which is not reasonably supported on the facts or not reasonable in the light of the reasons given for it, a court may not review that decision. A court should not rubber-stamp an unreasonable decision simply because of the complexity of the decision or the identity of the decision-maker.”

[19] I make the immediate observation, on the basis of the papers before the court  that the Council is made up of eminent academics. There is a Higher Education and Quality Assurance Committee (“HEQAC”), also composed of eminent academics, which makes recommendations to the Council. The task of granting a provisional registration licence requires expertise and decision-makers who are experts in the field. I am satisfied that the Council, in making its decision, considered only relevant factors and did not consider irrelevant factors. The question of whether the applicant has made substantial steps towards accreditation is an issue that can best be answered by the Council. I do not see how this court, in the proper exercise of its judicial power, can order the respondent to issue the applicant with a provisional registration licence in terms of s 11 of the Act; and that in the event of failure by the respondent to issue the licence, the provisional registration licence is to be deemed to have been granted. This betrays the applicant’s misconception and misunderstanding of the basic principles of administrative law and the notion of deference. It is the prerogative of the respondent, in terms of s 11 of the Act, to grant a provisional registration, and the court should be careful not to usurp such a function. This would be a textbook case of judicial overreach – a constitutionally impermissible intrusion by the judiciary into the exclusive domain of administrative bodies. See Economic Freedom Fighters and Others v Speaker of the National Assembly and Another [2017] ZACC 47. All this does not mean that a court should merely rubber-stamp a decision simply because of the complexity of the decision or the identity of the decision-maker. It means the court should take care not to usurp the functions of administrative bodies.

[20] In addition, the applicant contends that the decision sought to be impeached is irrational. In the context of administrative law, decisions must be rationally related to the purpose for which the power was given. In A/butt v Centre for the Study of Violence and Reconciliation and Others 2010 (3) SA 293 (CC) at para. 51, the court held that where an administrative decision is challenged on the grounds of rationality, courts are obliged to examine the means selected to determine whether they are rationally related to the objective sought to be achieved. What must be stressed is that the purpose of the enquiry is to determine not whether there are other means that could have been used, but whether the means selected are rationally related to the objective sought to be achieved. See Pharmaceutical Manufacturers Association v of SA: In re Ex Parte President of the Republic of South Africa 2000 (2) SA 674 (CC). The diagnosis to ascertain the rational connection between the decision and the rationale is this: the purpose for which the action was taken; the purpose of the empowering provision; the information before the decision maker; and the reasons given for it by the administrator.

[21] In the present case, the purpose of the empowering provision, i.e., s 11 of the Act, is to provide for the provisional registration, pending final registration, of institutions of higher education that meet certain requirements.  The information before the Council was that the applicant was previously granted provisional registration. That eight UNICAF programmes fail to meet the minimum requirements for accreditation, in that they are not designed for the Zimbabwean context, and they do not comply with the national thrust of Heritage-Based Education Philosophy Education 5.0. The programmes were not developed by locals but were a replica of what was being offered by UNICAF University in different countries. The programmes were not offered 100% online, and there was no written examination, but a continuous assessment. Council reasoned that UNICAF Zimbabwe has not demonstrated any significant steps towards complying with the conditions set out in s 19 of the Act. Council could not grant a provisional registration when the applicant had not made significant steps towards final accreditation. Furthermore, the Council noted that the programmes intended to be offered by the applicant had certain weaknesses in content and assessment mode and that the applicant has indicated an unwillingness in positively respond to the noted weaknesses. In addition, the applicant did not demonstrate any compliance to the stated conditions under which it was granted the initial provisional registration.  Therefore, the purpose for which the decision was taken, and the reasons for it, pass the rationality test.

[22] The decision is also attacked on the grounds of unreasonableness.  Factors relevant to determining whether a decision is reasonable or not will include the nature of the decision, the identity and expertise of the decision-maker, the range of factors relevant to the decision, the reasons given for the decision, the nature of the competing interests involved, and the impact of the decision on the lives and well-being of those affected. See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 4 SA 490 (CC). In the present case, the Council is made up of eminent academics with experience and expertise in the field of education. The decision accords with the evidence that was before the Council and seeks to ensure quality education that answers to Government policy and the needs of the people of Zimbabwe. The decision passes the reasonableness test.

[23] The allegations of bias leveled against the Council have no basis. No allegation has been made that a member or members of Council had a personal interest in this matter. The fact that the Council made an adverse decision or decisions against the applicant, standing alone, is not proof of bias. An allegation of bias against such a Council composed of eminent academics would require clear and satisfactory evidence to be sustained. There is no evidence that the decision was arrived at arbitrarily or capriciously or mala fide.

[24] The applicant further contends that there was an unreasonable delay in making the decision sought to be impeached. The respondent has given an acceptable explanation for the delay in communicating its decision to the applicant. Even if there was an inordinate delay, the applicant has not suffered irreparable prejudice because the decision was made, and this application is an answer to that decision. In any event, the delay, standing alone, cannot be a basis to vitiate the decision of the respondent. In addition, the applicant has not shown that the decision sought to be impeached is in the reading of the Administrative Justice Act, unlawful, unfair, or unreasonable. It is for the above reasons that this application cannot succeed.

[25] There remains to be considered the question of costs. No good grounds exist for a departure from the general rule that costs follow the cause. The respondent is clearly entitled to its costs. The respondent seeks costs on the punitive legal practitioner and client scale. The position of the law is that the scale of costs on a legal practitioner and client scale is an extraordinary one which should be reserved for cases where it can be found that a litigant conducted itself in a clear, indubitably vexatious and reprehensible manner. Such an award is very exceptional and is intended to be very punitive and indicative of extreme opprobrium. It should be in relation to conduct that is clearly and extremely scandalous or objectionable that these exceptional costs are awarded. In this case, no case has been made for such costs. See Kangai v Netone Cellular (Pvt) Ltd 2020 (1) 660 (H); Railings Enterprises (Pvt) Ltd v Luwo & Ors 2020 (2) ZLR 51 (H).

In the result, the application be and is hereby dismissed with costs.

Dube, Manikai & Hwacha, applicant’s legal practitioners

Chihambakwe, Mutizwa & Partners, respondent’s legal practitioners