Saturday, May 28, 2022

ABM University loses bid to reinstate banned programmes

ABM University students who have enrolled for diploma, advanced diploma and associate degree programmes underwritten by the Institute of Commercial Management (ICM) have been left in the lurch.
The Tertiary Education Council (TEC), which is the regulatory authority, has ordered the ABM University to discontinue the programmes.

The Ministry of Education is understood to have spent millions of pula sponsoring students who have been enrolled in ABM University programmes, which have not been approved by the TEC.
The Telegraph has not been able to establish the number of students affected.

The Academy of Business Management, which is trading as ABM University, recently lost their court bid to set aside the TCE directive stopping them from enrolling students under the programme.
The university had filed an application before Lobatse High Court Judge Lashkavinder Walia that the TEC order be suspended pending a final determination of a review application to be instituted by ABM University.

The University is planning an application for the review of the TEC decision as contained in the regulatory authority’s letter of 24 November 2009 under the heading, ”Changes in the ICM programmes and its effects on the current crop of students”, which was signed by the TEC Executive Secretary.
Dismissing the application by ABM University, Justice Walia said that there was nothing in the court papers and the arguments presented before him that suggests that the TEC decision was capricious, irrational or unreasonable.

Justice Walia said this leaves allegations that TEC acted ultravires as the only ground for review.
The lawyer acting for AMB University, Dutch Leburu, had suggested that the TEC Executive Secretary was not empowered to make the decision barring the university from enrolling students in the controversial programmes. He argued that powers and functions of the Executive Secretary are circumscribed by Section 9 of the Act and do not extend to making decisions on behalf of the Council.

Justice Walia, however, said Leburu’s argument was misconceived as no relief was sought against the Executive Secretary. She pointed out that the papers presented before court were specific that the decision ABM University sought to be set aside was that of the TEC.

The letter from the TEC executive Secretary communicating the decision to ABM University “was clear in more than one paragraph the Executive Secretary was communicating what had been considered and decided by the TEC”, said Justice Walia.

She further explained that in terms of Section 5 of the Act, it was a function of the Council to review and approve programmes of study irrespective of tertiary institutions.

In terms of Section 9, the Executive Secretary is the liaison between the Council, Government and tertiary institutions.

Justice Walia said, “In the face of these clear provisions, it cannot be suggested that the communication of a decision by the Executive Secretary equates to the decision having been made by him.”

Walia said the only argument advanced by Leburu worthy of consideration was that TEC did not give ABM a hearing before making the decision. She said that TEC stated that as much as a proper hearing in the sense of oral debate was not held, it concedes that the decision was not preceded by a hearing.

The decision, however, was preceded by copious correspondence and ABM given ample opportunity to make representations. Walia said this satisfied the principles of the audi alteram parten rule. She said neither the Act nor the regulations prescribed a procedure for dealing with matters of change of nomenclature or fundamental changes in curriculum.

Reference, she said, has already been made to Regulation 14, which provides that in matters fundamental change, the council is required to institute an investigation.

On ABM’s submission that the change amounted to nomenclature alone, Walia said that Regulation 14 has no application. She said if, on the other hand, the change amounted to a fundamental change as alleged by TEC, then in his view the requirements of Regulations 14 have been met by TEC embarking on correspondence to determine the nature of the change.

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