Nthako v National Health Training Centre (The Director) (CIV/APN/278/04)

Case No: 
CIV/APN/278/04
Media Neutral Citation: 
[2004] LSHC 86
Judgment Date: 
13 July, 2004

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CIV/APN/278/04

IN THE HIGH COURT OF LESOTHO


In the matter between:-


NTHAKO NTHAKO APPLICANT

AND

NATIONAL HEALTH TRAINING

CENTRE (THE DIRECTOR) 1st RESPONDENT

MINISTER OF HEALTH 2nd RESPONDENT

ATTORNEY GENERAL 3rd RESPONDENT


JUDGMENT


Delivered by Honourable Ms Acting Justice N. Majara on the 13th July, 20041.


1) The applicant in this matter approached this court for relief in the following terms:


  1. That the rules of this Honourable Court pertaining to periods and mode of service should be dispensed with and that the matter should be heard on an urgent basis.


  1. That the purported suspension of applicant be declared and set aside as being irregular and as such, of no force or effect.


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  1. That the first respondent be directed to allow the applicant to write examinations in the event that this matter is finalised after the second sitting of examinations.


  1. That the applicant be granted further and or alternative relief.


  1. That the respondents be ordered to pay costs of this application in the event of their opposing it.


2) On the 28th of June 2004, the matter was postponed to the 5th of July 2004 for hearing by consent in order to allow the respondents to file their opposing papers. However, on the 5th of July 2004, the matter was postponed again to the 6th July 2004 because I had not yet seen the file as it had not been placed before me. On the 6th July 2004, the matter was duly argued before me and I reserved my judgment and thereby postponed it to the 13th of July 2004.


FACTS


3) It is common cause that Applicant is a registered student of first respondent's institution, the National Health Training Centre, having first enrolled in 2002 and currently in his second year of study, pursuing Medical Laboratory Science. He resides on first respondent's campus. The first respondent is an affiliate of the National University of Lesotho and Judicial Notice is

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taken of the fact that the University's final examinations are written during the month of May of each calendar year.


4. It is also common cause that on the 28th May 2004, applicant sat down to write a Haematology paper as part of his final exams for 2004. He finished writing about thirty minutes earlier than the allocated time whereupon he left the examination hall to the dormitory. He was shortly called by one Moorosi informing him that he was being summoned to the office (my own italics). When they got to the office both applicant and the said Moorosi were taken to the laboratory room by one Mr. Makhetha. They were then questioned about some papers which they had allegedly taken into the examination room and also subjected to a search. The papers were duly found in applicant's pocket.


5. After a verbal admission by Applicant that the papers were found on his person, he was then instructed to reduce the admission in writing and sign same. This he did. Applicant had offered an explanation that though he taken the papers into the examination hall, he did not use them. The written admission was handed in as annexure 'B'. I must hasten to point out here that there was a dispute as to how the said papers were found in


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applicant's possession, that is, whether he personally produced them or whether it was the said Makhetha who carried out the search, who found them on applicant's person. However, this was not the real issue for this court's determination. What seems to have transpired is that, the papers were in fact found in applicant's possession and that applicant did make an admission before the said Mr. Makhetha whose answering affidavit has been filed of record. Applicant duly reduced his admission down in writing. This fact was also deposed to by one of the alleged culprits, Tsepo Lephema in his supporting affidavit.


6. On the same day, first respondent through one of its bodies, the Academic Council, resolved in a meeting which was held immediately following the incident, to disqualify applicant and five (5) other culprits from writing the rest of the examination. They were then called and informed of this decision in the afternoon of the same day. The minutes of this first meeting were attached as annexure (C). However, the Chairman of the Council was allegedly absent during this initial meeting when this resolution was made and on Monday of the following week, another meeting was held with him now in attendance. Applicant and the others were called again whereby they were told by the Chairman that due to their


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respective admissions which they had reduced in writing, Council had resolved that they be disqualified from college for two (2) years. They were informed that at the end of the period of suspension, they could reapply for admission. The minutes of this subsequent meeting were also attached as annexure (D). Applicant protested before the Chairman that he had been influenced by Makhetha to make the written admission and that he had done so with the belief that the matter would thus rest, whereby the Chairman advised him to reduce his complaint in writing and he did. It is not clear what steps if any, were taken with regard to this complaint.


7. It was at this juncture that applicant brought the matter before this court on an urgent basis whereby he was challenging the Academic Council's decision on the following grounds:

7.1 That his suspension was irregular, both procedurally

and substantively.

7.2 That he was not given a fair hearing prior to his

suspension

7.3 That this court should declare the suspension as irregular and of no force and effect and on that basis, set it aside.


8. As I have already pointed out, most of the facts in this case are common cause. Ms HLAKANE, counsel for first respondent raised some points in limine which the court had to address before going into the merits. These were briefly that:


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8.1 Applicant's founding affidavit was materially defective for lack of his failure to make the standard deposition to the facts being within his personal knowledge and to be true and correct to the best of his recollection and that the contents were therefore hearsay.

8.2 Applicant had failed to exhaust local remedies by deciding to approach this court instead of lodging an appeal with the Governing Board as is required by the rules and that as a result the matter was brought prematurely before this court.

8.3 Applicant was as a matter of fact given a hearing.


9. I decided to deal with these points first and deal with the merits after, in the event that I decided that respondent's points in limine were not legitimate enough to warrant a dismissal of applicant's case at this stage. Ms HLAKANE was correct in pointing out that applicant had failed to make the standard deposition of facts being to his personal knowledge in his founding affidavit, and the issue for the court to determine was whether such failure was so material that it rendered the whole of his evidence as hearsay on the basis of which his case should be thrown out. Secondly, whether the omission was in any way prejudicial to the first respondent in the conduct of his defence.


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10.With regard to the first point, Mr MPAKA, counsel for applicant submitted that although there was an omission of these standard words, the affidavit which applicant deposed to contains personal and first hand information which was sworn to by the applicant. The court agreed with this submission and also observed that the sworn statement was made before a legitimate Commissioner of oaths and to which applicant appended his signature. The omission was thus a formal one and not materially defective as to render the whole of the contents as hearsay. In addition, the contents in the founding affidavit could not correctly be called hearsay simply because of the omission, nor do they meet the definition of hearsay. Hearsay evidence has been defined in the Concise Oxford English Dictionary as "evidence given by a witness on information received from others rather than personal knowledge." Whereas hearsay has been stated to mean, "evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence". (See Herbstein and Van Winsen in the Civil Practice of the Supreme Law in South Africa p370). This clearly does not prevail in this case. The omission as it stands does not render the contents as not being personally known to the applicant nor does it render it as not being first hand.


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Secondly, the court found that first respondent had failed to demonstrate how the omission was in anyway prejudicial to his case. I wish to quote with approval the position that the applicant bears the onus of showing first that this omission constituted an irregularity and second that such irregularity prejudiced him in the conduct of his defence as was stated by my brother Honourable Mr. Justice M.E. Teele A.J. (as he then was) in Makepe vs The Magistrate & 2 Ors CIV/APN/583/02. In my humble opinion, first respondent ought to have discharged this onus in order for the court to find in his favour. On the basis of this failure by first respondent, and the other reasons as I have already stated above, I therefore dismissed this point.


11. With regard to the issue of non-exhaustion of local remedies, Ms HLAKANE, first respondent's counsel contended that instead of approaching this court at this stage, applicant ought to have appealed against the decision of the Academic Council to the Governing Board as per the provisions of Section 9(3)(k). I must point out at this stage that the relevant law from which the section was adapted was not attached to any of the papers before the court for ease of reference. However, since the contents of this section were not challenged, the court


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did not bother itself with their correctness or otherwise. The section is said to provide that the Board shall act as a Board of final appeal on student disciplinary matters and that as a result applicant ought to have approached it first to challenge the decision of Council. The court noted that this point went to the root of the case at hand because applicant's contention was that there was no hearing at all, a fact which first respondent was disputing. The court was referred to the decision of Honourable Mr. Justice B.K. Molai in Fobo vs Officer Commanding Maseru Central Prison and 2 Ors CIV/ APN/161/92. Applicant in that case had also approached the court to set aside a decision granted against him in a disciplinary hearing which had been instituted against him on grounds of irregularity.


12. The honourable judge in that case dismissed the application and he had this to say;


"This is a flagrant undermining of the statutory powers of the Director of Prisons and should not, in my opinion, be encouraged/permitted. The applicant ought to have exhausted domestic remedies, available to him, before approaching this court in the manner he did. He did not do so. The application was} for that reason, brought before the High Court prematurely and ought not to succeed."


I absolutely agree with this view as expressed by the Honourable Justice in that case. However, a distinction ought to be made between that case and the one at hand. In the


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former case, a disciplinary hearing had been held against applicant and the right procedure the applicant therein ought to have followed in challenging the decision was to have lodged an appeal with the director as per the provisions of Prison Rules 1957. He failed to do so but instead elected to approach the High Court to set the decision aside.


13. In the case before me, the very crux of applicant's case is that he could not appeal against the decision of a purported disciplinary hearing which was as a matter of fact, never held. Mr MPAKA, counsel for the applicant's contention was that the decision of the Council was made in applicant's absence and he was just called in so that it could be communicated to him. Respondent's counsel's contention was that the questioning of applicant by Makhetha was sufficient to constitute a hearing because the latter is a member of the Academic Council and also because an urgent decision had to be made whether or not applicants and others should be allowed to continue with writing the rest of their examinations. In the opinion of this court, this latter contention cannot legitimately be upheld. An enquiry made single-handedly by a member of a body in the absence of the other members cannot be held to be a hearing properly so-called. This is more so in the light of the fact that the Council subsequently was able to meet, albeit in the absence of applicant and on


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the basis of Makhetha's report, arrived at a decision that was later communicated to applicant and yet such decision directly affected applicant's right to finish writing his examinations and to continue with his studies in the subsequent academic year(s). As has been stated by Isaacs in Beck's Theory and Principles of Pleading in Civil Actions 5th Ed.at p327,


"The courts, however, will interfere if the person or body concerned has acted beyond the scope of the delegated powers or if the method of acting has been irregular or if there has been mala fides or absence of jurisdiction. In general, it may be stated that administrative tribunals must act I accordance with the tenets of natural justice. This, in general, includes the principle of audi alteram partem."


When dealing with the fundamental requirements to which an affected individual is entitled, to satisfy the audi alteram partem, Baxter in Administrative Law at p 543-544 states:-


"....there are two fundamental requirements to which an affected individual is entitled: notice of the intended action; and a proper opportunity to be heard.

It cannot be properly argued that these two requirements were met by the Council. Applicant was never given any notice of the intended action by the Council, nor was he granted an opportunity to present his case. Secondly, nothing was put


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before this court to convince it that the Governing Board, which is said to be the appropriate body that applicant ought to have appealed the Council's decision to, has the powers or procedures that would adequately correct the effects of the denial of natural justice by first respondent against applicant . This is one of the requisite factors to be taken into consideration by the court in deciding on the issue of exhaustion of local remedies. (See Herbstein supra P943-4). Even if this had been put before the court, the real issue to determine would be whether judicial review is excluded or deferred in first respondent's Rules & Regulations, and this was not raised in this present case. I therefore dismissed this point as well and directed that both counsel should address the court on the merits.


14. As I have already pointed out earlier, most of the facts in this case are common cause and the real issues that this court had to determine were:


14.1 Whether the Academic Council did afford applicant a hearing.

14.2 Whether the Academic Council acted within its mandate when it decided to suspend applicant.

14.3 Whether the suspension was of any force or effect.


15. On the 28th of May 2004, the Academic Council met and deliberated on the issue of applicant and the others who had been found in possession of papers which they eventually all admitted to have taken into the


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examinations room. Those present during the deliberations were as per the minutes which were annexed as (C) :-Present

Mr. M. Leokaoke - Deputy Director a.i - (Chairperson)

Ms. M. Tsotako - HOD - ASR

Ms. N. Hoohlo HOP - PTTP

Mr. M. Mabele - HOP - MLS

Mrs. M. Tlaba - HOP - NAP

Mrs. M. Moru - HOP - Midwifery

Ms. S. Mokalanyane - HOD - AHS

Mr. M. Mahahabisa - HOP - Environmental Health

Mrs. M. Ramphoma - HOD - Nursing

Ms. D. Ramaqabe - Examinations Office (Recorder)

Mrs. M. Thakhisi - HOP- General Nursing

The Council resolved in that meeting, which read in part and in so far as is relevant to the issue at hand, thus:-


"Following the deliberations on the penalty, it was finally decided that they all be disqualified from the examinations for breech (sic) of Regulation #4 on (sic) the College Examinations Rules and Regulations. As a result,

All concerned students were called in (my underlining) and part of the penalty explained to them as: Disqualified from the examination for breech (sic) of regulation #4 of the College Rules and Regulations.

The Council felt that the presence of the Director - (Chairperson) was deemed necessary for conclusive decision-making; hence the

postponement of the hearing to next week Monday, 31st May, 2004.


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- More information on the penalty would be made available after the Academic Council meeting on the 31st May, 2004."


16. Ms HLAKANE, Counsel for respondent contended these two meetings, constituted a fair hearing and her contention is based on the fact that an urgent decision had to be made in this case since examinations were still in progress and another Haematology paper was due to be written on the same day at 2.00 p.m.


It is a general principle of law that every individual must be accorded a hearing before any decision may be taken against him. Under ordinary circumstances, a hearing precedes a decision. (See Morapeli Motaung vs P.S. Ministry of Tourism, Sports and Culture & Others 1997 - 1998 LLR & LB 317 at 321). It has however been stated that in some exceptional cases, where special circumstances exist, a hearing after the action may be permissible. (See Wade, Administrative Law, 6th Ed. P566) (See also Moselane et al vs Manager, Bonhomme Commercial High School & Ors 1990 - 1994 LAC P427)


In the present case, special circumstances did exist in that a decision had to be made before the next sitting of examinations which was on the afternoon of the same day. However, in my opinion, there is no reason why when the urgent meeting was called applicant was not summoned to


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be part of the deliberations and to be allowed to put forward his case because he was available all along. It was not made clear to this court why he was only called in to be informed of the decision after the meeting. If it could be argued that the process would probably have taken longer than was practical (which argument has not been raised before this court), I failed to find any reason why applicant was not given a hearing soon thereafter. (See Wade, supra at p566). Instead, as per the minutes of the subsequent meeting by Council on the 31st May 2004, annexed as (D), the earlier decision by Council was endorsed with the Chairperson in attendance this time around and as had happened in the earlier meeting, applicant was only called in to be told of the final decision.


17. When applicant complained to the Director about the manner in which his case had been handled, he was advised to reduce his complaint in writing but, nothing was suggested to him with regard to his right to appeal against the decision of Council to the Board. The court found this conduct to lack the bona fides that a case of this nature merited. On the basis of this conduct, this court failed to see a display of good faith by Council as it is a requisite of the taking of such a drastic a major with far-reaching consequences arrived at in the absence of the concerned individual.


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18. On the issue of whether the Council acted within its mandate in resolving to suspend applicant, Appendix 2 of the record which is a copy of the Rules for Examination Candidates and Rules 4 & 15 which rules make specific provision for such eventualities, provide respectively:-


R4. No candidate may bring into the examination hall any papers, books, notes or equipment other than what is permitted i.e. pens, pencils, rulers calculators.


R15. Any infringement of these Regulations shall be reported by Chief Invigilator to Examinations Officer who shall report the matter to Senate for Disciplinary Action (e.g. disqualification).


19. Ms HLAKANE submitted that it was an established rule of practice at the college that all matters relating to discipline are dealt with by the council and not the Senate and that on the basis of this practice applicant's case was rightfully dealt with by Council. In order to determine this question, the court referred to Rule 4.20.00 of the first respondent attached as Appendix I of Mr MPAKA's Heads of Argument and to which first respondent's counsel has also made reference. The rule provides for the Functions of Academic Council. Upon perusal of the rule from the first provision to the last, nowhere is there any provision for Council to sit as a disciplinary body or even a slight reference to its having


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any mandate to deliberate on such issues. Instead, there is a subsequent rule viz, Rule 19 which makes provision for steps to be taken in the event that any student is found in possession of unauthorised material in the examination room. It provides as follows:-


19.06 No books or notes shall be permitted in the examination hall, nor in the examination laboratory, except those specified.


19.07 Candidates are made aware by this regulation that failure to comply with 19.06 above will lead to their instant removal from the hall or laboratory. In addition, breach of 19.06 above will mean that all marks achieved previous to the violation of rule 19.06 will be rejected, and will not be considered by the Examination Boar.


19.08 Decision on whether to allow the candidate to take subsequent examination will be made by the National Health Training College Board my own italics) based on consideration on (sic) the Chief invigilators report.


20. It is my humble opinion that the Academic Council acted ultra vires its powers in that the mandate to deal with disciplinary issues regarding conduct of candidates in the examinations hall and/or laboratory is vested in the Governing Board as is clearly stated in the above rule. No reason has been given as to why it was the Academic Council and not the Board that dealt with the matter both on the first and second occasions as per the


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attached minutes marked annexures (C) and (D) respectively, save to state that this was standard practice without this submission being substantiated or justified in anyway. But, be that as it may, it is the opinion of this court that such practice is against first respondent's own Rules and Regulations and has no legal basis and should therefore, not be sanctioned by this court on that reason alone.

21. I find that the applicant has successfully made out his case for the relief sought. The application is therefore upheld with costs to the applicant. The decision of the Academic Council is set aside as null and void and of no force or effect.


N. MAJARA

ACTING JUDGE


For Applicant : Mr Mpaka

For Respondent: Ms Hlakane