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Educational Secretary ACL Church Schools v Ramokone and Others (C of A (CIV) 05/2010)
IN THE COURT OF APPEAL OF LESOTHO
C of A (CIV) 05/2010
In the matter between:
EDUCATIONAL SECRETARY ACL
CHURCH SCHOOLS …..................................................APPELLANT
‘MALITEBOHO RAMOKONE …............................1ST RESPONDENT
THOTHOLANE MATSIE …...................................2ND RESPONDENT
KAHLOLO PETLANE ….......................................3RD RESPONDENT
ST. JOHN’S HIGH SCHOOL-MAFETENG ….........4TH RESPONDENT
SCHOOL GOVERNING BOARD –
ST. JOHN’S HIGH SCHOOL …............................5TH RESPONDENT
MINISTER OF EDUCATION AND
TRAINING ….......................................................6TH RESPONDENT
THE ATTORNEY GENERAL ….............................7TH RESPONDENT
CORAM: RAMODIBEDI, P
HEARD : 12 OCTOBER 2010
DELIVERED : 22 OCTOBER 2010
Appeal against the dismissal of an application in the High Court – non-joinder of party having a direct and substantial interest in the outcome of the application – appeal allowed with costs – order directing further proceedings.
 The appellant (fifth respondent in the court a quo) appeals against a decision of the High Court (Chaka-Makhooane J) granting certain relief to the first respondent (applicant in the court a quo) against the appellant and various other respondents. The nature of such relief will appear more fully below. For the sake of convenience, and in order to avoid unnecessary confusion, I propose to refer to the parties as in the court below. To further facilitate the reading of this judgment I set out their details:
‘Maliteboho Ramokone Applicant
Thotholane Matsie First Respondent
Kahlolo Petlane Second Respondent
St. John’s High School-Mafeteng Third Respondent
School Governing Board – St.
John’s High School Fourth Respondent
Educational Secretary ACL
Church Schools Fifth Respondent
Minister of Education and
Training Sixth Respondent
Attorney General Seventh Respondent
 In terms of section 22 (1) of the Education Act 10 of 1995 (“the Act”), every post-primary school shall be managed by a School Board appointed by the proprietor. In terms of the definition section of the Act (section 2), a “post-primary school” includes a high school, and a “proprietor” in relation to a school includes a church by which a school is established. In terms of section 22 (2) of the Act the appointment of a member of the School Board shall be subject to the approval of the Minister responsible for education. Section 22 (3) provides that the School Board shall consist of, inter alia, two representatives of the proprietor, one of whom shall be the Chairperson. A member of the School Board holds office for a period of three years and is eligible for reappointment.
 It is common cause that in 2004 the applicant was duly nominated, approved and appointed in terms of the Act as a proprietor’s representative of the School Board of St. John’s High School (the fourth respondent). She was also appointed the Chairperson of the School Board. Her term of office was due to expire in December 2007. It is also common cause that at all relevant times the Anglican Church of Lesotho (acting through its duly appointed representatives) has been the proprietor of St. John’s High School. I shall refer to the Anglican Church of Lesotho as “the Church” or “the proprietor” as best suits the context.
 On 19 May 2008 the Minister of Education and Training (the sixth respondent) (“the Minister”) purported to reappoint the applicant as the proprietor’s representative and Chairperson of the School Board. One Mr. Sarele Moremi was appointed as the other representative of the proprietor. The circumstances regarding the reappointment of the applicant, and its validity, are in dispute.
 On 2 June 2009 the proprietor, with the approval of the Minister, purported to revoke the appointment of the applicant and Mr. Moremi by replacing them as the proprietor’s representatives with the first and second respondents respectively. The rest of the representatives of the School Board remained the same. Consequent thereon the applicant sought an order against the respondents in the following terms:
“(a) Interdicting and restraining 4th, 5th and 6th respondents from recognizing and dealing or working with 1st and 2nd respondents as the proprietor’s representatives on running and governing of the 3rd respondent herein pending the final determination of this application.
(b) Interdicting and restraining 1st and 2nd respondents from holding themselves out as the proprietor’s representatives and members of the 4th respondent herein pending finalization hereof.
(c) Declaring the nomination, appointment and approval of the 1st and 2nd respondents as the proprietor’s representatives in the 3rd respondent’s School Governing Board as null and void and with no force or effect.
(d) Ordering and directing the respondents to pay the costs hereof.
(e) Granting applicant herein such further and / or alternative relief as this Honourable Court deems fit.”
The application was opposed by the first, second and fifth respondents. Answering and replying affidavits were duly filed, and the matter argued before the learned judge. She ultimately granted the orders sought in (a) to (d) above. Hence the present appeal by the fifth respondent.
 In Theko and Others v Morojele and Others LAC (2000-2004) 302 at 312B and 312G-H Ramodibedi JA (as he then was) said the following in relation to the relevant provisions of the Act (although the Court was there dealing with section 17 of the Act, its provisions are in effect identical to those of section 22 save that the former section deals with Management Committees and the latter with School Boards):
“In my view, it requires to be emphasised that appointment of the Management Committees is the prerogative of the proprietor with the approval of the Minister.”
“The fact that some of the appointees of the proprietor undergo an election process before being so appointed does not detract from the fact that it is the proprietor who is empowered to make appointments, albeit with the approval of the Minister.”
 From what has been said above it is evident that a proprietor plays a pivotal role in the appointment of members of a School Board, and more particularly his representatives. Moreover a proprietor would normally be expected to play a role in events which might lead to the revocation or premature termination of their appointments. In the circumstances the Church, as proprietor, clearly had a direct and substantial interest in the orders sought by the applicant in the court a quo, and should have been joined in the application (Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (AD)). It is common cause that it was not joined. The fifth respondent is no more than a functionary of the Church appointed by it to perform the tasks entrusted to him in terms of section 24 (3) of the Act and is clearly someone distinct from the proprietor in terms of the Act (see Theko and Others v Morojele and Others (supra) at 311C-E). In passing it should be noted that this Court has in the past expressed its concern about, and strongly deprecated, the practice of non-joinder of interested parties (Lesotho National Olympic Committee and Others v Morolong LAC (2000 – 2004) 449 at 455D to 456B).
 Issues of non-joinder and misjoinder were raised in the court a quo, in particular in relation to the proprietor. In dismissing them the judge a quo appears to have overlooked the position of the proprietor, as she failed to deal specifically with it. As pointed out above, the proprietor had a direct and substantial interest in the orders the court a quo was asked to make, and should therefore have been joined in the application. The judge a quo should have acknowledged that fact and should have made an appropriate order with regard to the further conduct of the proceedings. The upshot of this is that the appeal falls to be allowed on this narrow point and this Court will have to substitute for the court a quo’s order granting the application the order which that court should have made in the circumstances.
 The notice of appeal in the present matter also addresses the issue of non-joinder of individual members of the fourth respondent, alternatively, what is referred to in the notice as the “respective Boards”. There can in my view only be one legal entity that constitutes the School Board, and such entity has been joined as the fourth respondent. Who the validly appointed members of the fourth respondent are is a different matter. As far as the individual members are concerned, the composition of the School Boards purportedly appointed on 19 May 2008 and 1 June 2009 respectively correspond except for the applicant, Mr. Moremi and the first and second respondents. Apart perhaps from Mr. Moremi, there was in the circumstances no need to join the other individual members. Mr. Moremi appears not to have taken issue with the fact that he has been replaced. In any event, any interest he might have in the application is one he largely shares with the applicant. In the circumstances his omission as a party does not, in substance, constitute non-joinder. It might, however, obviate all doubt if he were to be given notice of the application.
 In the result the appeal must succeed in regard to the issue of non-joinder. The fifth respondent (appellant) is entitled to his costs of appeal. The order of the court a quo dismissing the application needs to be set aside, and must be replaced by the order it should have made had it upheld the plea of misjoinder. The costs in the court a quo should stand over for later decision.
 It is unfortunate that there should be an unseemly wrangle in regard to the management of St. John’s High School, something which is potentially detrimental to all concerned, particularly to the efficient functioning of the school and the interests of its pupils. It is to be hoped that the parties will make a serious and concerted attempt to resolve their differences amicably and sensibly.
 The following order is made:
The appeal is allowed, with costs.
The order of the court a quo is set aside and there is substituted in its stead the following order:
The applicant is directed to take the necessary steps to join the Anglican Church of Lesotho (“the Church”) as a party to the application within seven (7) days and to serve on it a copy of all the papers comprising the application.
The Church is to file its answering affidavit within fourteen (14) days of the service upon it of the documents referred to in (a) above.
The applicant may file a replying affidavit within seven (7) days of receipt of the Church’s answering affidavit.
The application may thereafter be set down for hearing by any party on notice to all other parties.
The costs of the application are to stand over for decision later.
The application is to be heard by a judge of the High Court other than the judge who originally decided the application.
The Registrar or the judge to whom the application is assigned, as the case may be, is requested to afford priority to the hearing of the application due to its exigency.
A failure by the first respondent (applicant) to act in terms of paragraph 2(a) above will result in the dismissal of the application, with costs.
JUSTICE OF APPEAL
PRESIDENT OF THE COURT OF APPEAL
JUSTICE OF APPEAL
For Appellant : Adv L.D. Molapo
(with him Adv N.S. Molapo)
For First Respondent: Adv B.M.R. Masiphole