- High Court orders Unisa to issue an amended LLB degree certificate reflecting the applicant’s lawful surname.
- Judge dismisses Unisa’s application for condonation and strikes its answering affidavit from the record.
- The court finds the university acted unreasonably by refusing to issue an amended certificate after already updating its own records.
For more than two years, Trevor Mthokozisi Ka-Mthokozisi fought to have the University of South Africa (Unisa) recognise his lawful surname on the Bachelor of Laws (LLB) degree he earned in 2018.
The High Court in Pretoria has finally ordered the university to issue him with an amended degree certificate reflecting his new surname, finding there was no lawful reason for refusing to do so after it had already amended its own academic records.
Judge NGM Mazibuko found that although Ka-Mthokozisi had not established grounds for the constitutional declarations he sought, Unisa could not justify refusing to issue an amended certificate once his surname had been lawfully changed and recognised within its own administrative system.
Ka-Mthokozisi, formerly Trevor Mthokozisi Sibanda, brought the application against Unisa, cited as the first respondent, together with the university’s Chancellor and Registrar, cited in their official capacities as the second and third respondents.
Graduate sought recognition of lawful identity
Ka-Mthokozisi enrolled at Unisa between 2011 and 2017 before graduating with an LLB in 2018. In December 2023, the Department of Home Affairs approved the lawful change of his surname from Sibanda to Ka-Mthokozisi.
Following the change, the South African Qualifications Authority updated the National Learners’ Records Database and issued a verification confirming the amendment. Umalusi likewise amended its records to reflect his new surname. Unisa also updated its internal student records and academic transcripts in January 2024.
However, despite recognising the surname change on its internal systems, the university refused to issue a degree certificate reflecting the applicant’s lawful identity. Instead, Unisa offered him a statement instead of a certificate, together with his academic transcript and record. Ka-Mthokozisi rejected the proposal and approached the High Court.
He argued that the refusal infringed his constitutional rights to equality, dignity and just administrative action, contending that his identity was inseparable from his dignity and that there was no legal justification for refusing to amend the certificate.
He further asked the court to declare unlawful Unisa’s reliance on its policy stating that duplicate certificates would not be issued under any circumstances and sought an order directing the university to issue an amended certificate capable of independent verification.
Litigation became increasingly contested
The matter became procedurally complex before it was finally heard. After the application was launched, Unisa failed to file its answering affidavit within the prescribed period and later sought condonation for the delay.
The university attributed the delay to attempts to resolve the dispute, leadership changes within its Legal Services Office, staff departures and internal decision-making processes.
It also argued that Ka-Mthokozisi had failed to exhaust internal remedies because he had not formally applied to the Registrar for the certificate to be reissued under the university’s procedures.
Judge Mazibuko rejected those explanations. “The respondents have not shown good cause for the court to condone the late filing of the answering affidavit,” the judge said.
The court found that lengthy periods of delay had not been explained and criticised the university for failing to communicate with the applicant while court deadlines passed. “It is not only about respect for one another as litigants, but more so about respect for the court process,” Judge Mazibuko said.
The judge found that the delays were self-created and that the university had failed to place sufficient evidence before the court explaining its non-compliance with the Uniform Rules of Court.
“The respondents were lax in their participation in these proceedings,” the judge said. The condonation application was dismissed, and the answering affidavit was struck from the record.
Supplementary affidavit refused
Ka-Mthokozisi later sought leave to file a supplementary affidavit. Judge Mazibuko reaffirmed the principle that motion proceedings ordinarily consist of founding, answering and replying affidavits and that additional affidavits are permitted only where exceptional circumstances exist.
The court found that no such circumstances had been established and that the proposed supplementary affidavit largely sought to introduce additional evidence after the answering affidavit had already been struck from the record. The application for leave to file the supplementary affidavit was dismissed.
Constitutional declarations fail
Ka-Mthokozisi also sought declarations that Unisa’s refusal to issue an amended certificate violated Sections 9, 10 and 33 of the Constitution and that the university’s policy concerning duplicate certificates was unlawful.
The court accepted that he had a direct legal interest in the dispute because the refusal affected a document reflecting his lawful identity. However, Judge Mazibuko held that the evidence did not justify the constitutional declarations sought.
The judgment explained that the university’s policy dealt with duplicate certificates issued where originals had been lost, stolen or destroyed. The present dispute concerned something materially different.
“A duplicate is different from a correction or an amendment,” Judge Mazibuko said. The judge held that Ka-Mthokozisi was not seeking another copy of an existing certificate but rather a corrected certificate reflecting a lawful surname change following the amendment of his identity document.
For that reason, the court concluded that no proper case had been made to declare the policy unconstitutional or inconsistent with the Constitution.
Court finds no legal basis for refusal
Although the constitutional challenge failed, the court found that Unisa’s refusal to issue an amended certificate could not be justified. The evidence showed that the university had already amended its own administrative records and had issued academic records bearing Ka-Mthokozisi’s lawful surname.
The court found no statutory or regulatory provision preventing Unisa from issuing a corrected degree certificate. Judge Mazibuko also found no evidence that doing so would undermine the integrity or credibility of the university’s academic records.
“I could find no ground upon which Unisa cannot issue an amended degree certificate bearing his new surname,” the judge said.
The court further held that Unisa’s refusal had become “arbitrary, unreasonable, irrational, incoherent” because the institution had already accepted the applicant’s lawful surname throughout its own administrative system.
Having found no legal obstacle preventing the amendment, Judge Mazibuko ruled that Ka-Mthokozisi had established a proper case for practical relief.
The court ordered Unisa to issue him with an amended LLB degree certificate reflecting the surname Ka-Mthokozisi exactly as it appears on his Department of Home Affairs identity document issued in December 2023.
While dismissing the applicant’s request for declaratory relief and refusing leave to file a supplementary affidavit, the court ordered Unisa to pay Ka-Mthokozisi’s legal costs, including the costs of counsel, bringing to an end a dispute over a qualification that the university had already recognised in every respect except the name printed on the certificate.
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