IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between:
LEHLOHONOLO MAJORO 1" Applicant
AND 118 OTHER STUDENT APPLICANTS 2nd 118 Applicants
DIRECTOR OF LESOTHO COLLEGE OF EDUCATION 1" Respondent
DISCIPLINARY COMMITTEE - LCE 2nd Respondent
THE SENATE - LCE 3rd Respondent
LESOTHO COLLEGE OF EDUCATION (LCE) 4th Respondent
Delivered by the Honourable Mr Justice T. E. Monapathi On 7th day of March 2007,
Applicants are students of the Respondent College who claim against the college and other Respondents including the Director (the Rector, the Principal). For brevity the Applicants are referred as above.
The case is as explained or stated in the notice of morion being the process showing their claim. There are about four prayers in which the students seek relief. Substantially they would want to be taken back to the college residences to resume lectures pending the final determination
of this application. In prayer (c) they request an order against the Director that he must address the issues of the food and residence fees. In the fourth prayer they ask the Director to withdraw the letters of dismissal of the Applicants. Finally they ask for costs against the Respondents if they oppose this application.
The circumstances surrounding the cause of this case are simply that the students were asked to vacate the campus as a result of having committed acts of violence or of extremely disorderly behaviour. This had resulted in letters of suspension being issued to them. But what is important is that the situation at the college was that there was no order. Whether we call it chaos or disruption or anything but things were not normal. That is why the Director and his people perceived that it was a situation that would not allow them to proceed governing or doing-business as usual. I am saying righdy or wrongly because that is (good or bad government) not what I must decide here. But what is important is that on the face of tilings there was abnormality.
It may perhaps have been that some of the students were going along with the demands that were made or some of them were not. It may be that at some stage there were ongoing classes or not. That is why I made an example of a case from the High Court of Botswana where some students were saying to University authorities: Oh! we are not part of the riot, we are not part of this strike, why do you close the University?" The High Court said since the Principal of the University perceived that he was not able to govern the University substantially well, he could and was entitled to close the University.
I sympathize with students who are saying they are not part of the strike. They said they are prepared to write their examinations, but the situation is that the authorities perceive that the situation is ungovernable. That is what the High Court in Botswana said in that it found no fault with the decision of the Vice-Chancellor to close the University. Those were the circumstances.
Here we have a situation which is almost similar to Botswana example. On the surface there was abnormality. This is correctly speaking a thing that has to be recognized and not what caused the situation. What we are concerned with is whether those who came to court did so for the right reasons or whether they came using the right procedures of court. I am not being called to say whether the Principal did well or did not do well in closing the College. I am not to say the students complained for good reasons or did not complain well as part of my decision. However counsel in addressing me may have alluded to such. What is common cause or what is agreed is that the students were sent home because there was something wrong in the nature of perceived chaos in the administration of the college. I will not deal with the aspects of the merits.
I now come to the points raised. This includes misjoinder and lack of urgency. It is useful to note that there are different kinds of procedures used to institute proceedings in this court as a High Court. There is in some cases a trial where one institutes summons so that there can
ultimately be evidence led. Later issues or selected points may have to be decided. On the other hand, as in the present situation, the Applicants have used what is called application procedure (in terms of Rule 8). This therefore being a case that is made or decided on papers.
That is why in line with the above we will speak about founding affidavits, answering affidavits and replying affidavit. It is because these are statements on the facts and the law that are made on papers under oath. And then there will be debate about the issues raised in the papers. As said before this procedure is governed by Rule (8) of the High Court, in which we will refer to Rule (8) (4), Rule (8) (22) and so forth because it is what governs this kind of procedure.
Rule (8) which speaks about notice of anticipation, and about Rule (8) (4) speaks about the need to give notice. It is also about Rule (8) (22) which speak about urgency. This is what concerns us now. What is important is that the Respondents are saying, on the basis of noncompliance with the rules this application must be dismissed. They are
saying: "You Applicants you have not complied with these rules in this sense or in that sense and the application must be dismissed."
I start with this query by Mr. Mohau that there was no right to join the disciplinary committee of the college (the Second Respondent). In these proceedings it was submitted that since there is a separate institution like the disciplinary committee in terms of the regulations of the college, it makes sense that sometimes it can be called before court or sometimes it can be so cited. But then if it is brought before court there must be good reasons why it is being joined. And if it is cited, as it has been cited, what is it that the Applicants claim from the disciplinary committee? The complaint by Respondents is that the disciplinary committee has been brought before court but nothing has been stated as to why the committee has been cited or what it has done, or what was their role, in the circumstances of the facts of this case, has been.
As the Respondents further argued, that ideally the Disciplinary Committee could be properly brought before court if it had done
something like charging people, receiving charges, deciding disciplinary matters of misconduct. If it had done any of those. But demonstrably there seemed to be nothing in the papers pointing out in that direction. I would conclude and I decided that there is no good reason why the disciplinary committee was joined. This point succeeds.
I now speak about the question of the lawyer or the practitioner who is said to have sworn the deponent affidavits of the Applicants. That someone other than Mr Metlae did so. That this was irregular because Mr Metlae is out of the country and he could not possibly have attested to the affidavit. What this amounts to is a serious allegations, where the lawyer acted improperly. As the High Court we are charged with protecting the community against the conduct of lawyers. Before this court or any other court, lawyers have to act honourably, honestly and with probity. It is the High Court which manages Advocates and Attorneys and which ultimately prefers misconduct charges against them, so to speak. And if one of them is removed he is removed by the High Court. That is why when the lawyer is admitted he is admitted by the
High Court. It is therefore the High Court which oversees the conduct of Advocates and Attorneys. My only complaint is that the explanation that Mr Chobokoane made should have been on affidavit. But he makes an explanation from the bar, about something that is very serious. I however decide not to make any final decision on this point. I prefer that it is no record against the alleged malfeasant practitioner. It is not necessary for me to decide this point.
I now come to the charge or the complaint that the Applicants, when they made the application before the Judge who gave the interim order, that is when they approached the Judge on the 28"' of February, 2007, that they had not allowed a period of two (2) days or forty-eight hours to expire before they approached the Judge. This is after filing the application. That is in contravention of Rule 8 (4).
The requirement of the last mentioned Rule is that when one files an application today one must make an allowance of two (2) days before one can approach a Judge. It appeals to be demonstrable that the
application was filed on day one and on that day the Judge was approached. It was on the 28th of February, 2007 and Mr. Justice Peete granted a rule on the same day.
Not only that Peete J seemed to have granted prayer 1 (a) and prayer 1 (b). We are to be reminded what prayer (b) says. It prays that the Respondents shall be ordered to allow Applicants to go back to the College residences and resume lectures pending the final determination of this application. What was happening was that the Judge was saying in effect, that Applicants could be back to the College and resume business immediately. This appears so unless there is misunderstanding with my reading of this. I am satisfied that, in my perception, this was the order granted, because the Applicants later complained that there has been contempt against this order. Interestingly this is tied to the next point
The point I want to make now is that at this time, on the 28"' of February, 2007, when this order was granted the College and administrators had not even known that there was an order against them
because the order had been granted ex parte. The court was eventually saying to Applicants: "Go back now and resume business," without having informed the Principal and, having not heard the other side. I emphasize: having not heard the other side. It would have been different if the court had been approached when the Rector and his people had been served with the papers and given notice that they must "know that Applicants are going to court against them." But this is not what happened. This is the very nature of the complaint. It is to be considered that in fact this was what happened that on the first day the Judge was contacted and the application was moved without notice.
The Respondents are saying that order was irregular, and this objection is consistent with the requirement of Rule (8) (4) that speaks about ex parte application and where one gets a drastic order when there was no immediate harm or prejudice. In my view this was not justified in the present application.
If the application was made on the same day it was different if an explanation was made in the papers as to why the application was treated in this way and asking for necessary and specific dispensation from the Judge. If there was such a statement to the Judge justifying and requesting this type of order where the other side was not given notice then it should have been recorded. And the Judge would have noted that he has been given the reasons why the other side was not given notice. The Judge would then have recorded that he has been given reasons why there is no notice of forty eight (48) hours because this Rule 8 (4) speaks about an important requirement called audi alteram partem one of the most fundamental principle of our law. It means "let the other side be heard." Audi alteram partem enables that there can be a fair hearing.
It is only in exceptional circumstances where an order can be given ex parte, because once one hears an application without the other side, one is taking away the other's right to be heard. Once that is done it is against fairness and justice. This case of Mahlakeng and others vs the Southern Sky LAC (2000 - 2004) 742 bears testimony to this requirement
and several others. So that this requirement is not a new tiling in our practice. It is for this reason that this application ought to he dismissed.
It may he correct that there was this urgency that the Applicants speak about. It may perhaps be that it was caused by the Applicants having initially caused discord. It may be that it was caused by Applicants having refused to disperse and go home when ordered to do so by the college. But fundamentally the complaint was against the students for having caused disorder. It is being said if they had been asked to go home rightly or wrongly they should have complained peacefully, and then proper action would have followed. Because this did not happen now there was this urgency. Mr. Mohau argued that they caused the urgency. Whether this is so or not most importantly this urgency was not a good reason why the order was taken the way it was taken. In the circumstances where these Applicants were not willing to disperse, there was no need for the court to have been approached the way it was approached.
The application is dismissed. There will be costs against these Applicants.
I want to underline that it is a serious thing if a big institution like a College or University does not function well. It does not matter who has caused that There are many students in a college like the Fourth Respondent and the effects of any disruption cannot be underestimated. Most importantly the education of the children or students or adults of this nation is a serious thing. That is why any disruption becomes a serious thing. Utmost care and circumspection is required in the government of such institutions. Not least through the co-operation by students themselves. They must not hide under the cover that they are youth or they are young. They are dealing with precious and valuable property and if there is a danger to that property, things becomes serious.
This is so regardless of whether one is young or old.
For Applicants : For Resondents :