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LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO. 13/2025
In the matter between:
BOCHELETSANE HIGH SCHOOL 1ST APPELLANT
SCHOOL BOARD BOCHELETSANE HIGH SCHOOL 2ND APPELLANT
MINISTER OF EDUCATION AND TRAINING 3RD APPELLANT
TEACHING SERVICE COMMISSION 4TH APPELLANT
DISTRICT EDUCATION OFFICE THABA TSEKA 5TH APPELLANT
ATTORNEY GENERAL 6TH APPELLANT
AND
MAMAHLOMI MAKHETHA RESPONDENT
CORAM: P.T DAMASEB AJA
P MUSONDA AJA
J. VAN DER WESTHUIZEN AJA
HEARD: 23 APRIL 2025
DELIVERED: 2 MAY 2025
FLYNOTE
Education Law — Appointment of school principal — Teaching Service Commission — Discretion to appoint from recommended candidates — Whether School Board’s ranking creates enforceable legitimate expectation — Procedural fairness — Rationality — Education Act 2010, s 42.
The respondent, then Acting Principal of Bocheletsane High School, challenged the appointment of a fellow candidate, Ms Maloreta Mamojalefa, as substantive Principal. She alleged procedural irregularities, including her exclusion from School Board deliberations and Ms Mamojalefa’s failure to submit a required form. The High Court (Makara J) set aside the appointment, holding that the respondent had a legitimate expectation of appointment based on a perceived School Board recommendation in her favour, and that the Teaching Service Commission (TSC) had failed to give reasons for departing from that recommendation.
Held, allowing the appeal—
Under s 42(1) of the Education Act 2010, the Teaching Service Commission possesses broad statutory discretion to appoint teachers whose salaries are paid by the Government. It is not legally bound to appoint the highest-ranked or preferred candidate of the School Board, provided its decision is rational and based on lawfully submitted recommendations.
The High Court erred in finding that the School Board had recommended the respondent. The evidence confirmed that the Board had in fact recommended Ms Mamojalefa, who was the highest scorer in interviews, better qualified (with a Master’s degree), and more experienced.
The claim of a legitimate expectation lacked a factual foundation. There was no official record evidencing any School Board endorsement of the respondent. A recommendation not made cannot be the basis of an expectation, legitimate or otherwise.
The Commission, having acted on the School Board's recommendation and chosen among shortlisted candidates, was not obligated to provide reasons absent allegations of illegality, irrationality, or mala fides.
The High Court’s setting aside of the appointment was based on a material factual and legal error and constituted an unwarranted judicial intrusion into the appointing authority's discretion.
Appeal upheld. High Court judgment set aside. Review application dismissed. No order as to costs.
JUDGMENT
P.T. Damaseb AJA:
Background
[1]
This appeal arises from a judgment of the High Court (Makara J) which reviewed and set aside the appointment of a school principal by the fourth appellant, Teaching Service Commission (‘the Commission’). The issue on appeal is whether the Commission’s appointment complied with s 42 of the Education Act 2010.
[2]
The facts originate from Circular No. 19/2021 issued on 29 June 2021 by the Minister of Education and Training, which invited applications for Principal posts at various schools, including the first appellant, Bocheletsane High School. The respondent, who then served as Acting Principal, applied and was shortlisted along with two other candidates.
[3]
The School Board of Bocheletsane High School (the School Board) conducted interviews and scored the candidates. Ms Maloreta Mamojalefa was ranked first with 91%, followed by the respondent with 75%. The respondent mounted a court challenge questioning Ms Mamojalefa’s qualifications, and alleging procedural flaws and irregularities.
Respondent’s case in the High Court
[4]
The respondent applied to the High Court to review the Commission’s decision to appoint Ms Mamojalefa. She alleged
that Ms Mamojalefa’s application was irregular, as it lacked a completed “Schedule 6” leadership application form. She also argued that the School Board did not hold a valid meeting to recommend Ms Mamojalefa’s appointment and that she (the respondent), as Secretary of the School Board, was excluded from the process, despite no apparent conflict of interest.
[5]
The respondent asserted that she was better qualified and experienced than Ms Mamojalefa, and that the latter’s appointment was procedurally flawed and irrational. Allegations of document forgery were also raised against Ms Mamojalefa.
Appellants' rebuttal
[6]
The appellants contended that the respondent, being a candidate, was rightly excluded from the deliberations of the School Board to avoid a conflict. They alleged that the School Board had properly assessed the candidates and that the Commission acted within its discretion under section 42(1) of the Education Act in appointing Ms Mamojalefa.
[7]
It was stated that the Commission was under no obligation to follow the School Board’s ranking or to provide reasons for its choice among the recommended candidates. The appellants further alleged that the respondent's claim rested on a misconception of the law and a misplaced sense of entitlement to be appointed.
High Court’s findings
[8]
Makara J held:
‘[11] The…[Commission] declined to appoint the Applicant to the…vacant post but instead, appointed the 3rd Respondent to it. This notwithstanding, the [Commission] has not assigned an iota of reasoning for this departure from the recommendation made in favour of the Applicant. To this end, the Court further recognizes that the recommendation advanced by the Board, ex lege entitled the Applicant to the legitimate expectation that she would be appointed to the office in rhyme with the recommendation. Thus this rendered it imperative for the [Commission] to have recorded the basis of its declination to have followed the recommendation’.
[9] The learned judge a quo also held:
‘[12] The omission by the [Commission] to have decided against the recommendation of the 2nd Respondent however it may have been made in good faith, tantamounts to the violation of the procedural rights to which the Applicant had, in the process acquired. In the same vain (sic), the decision does not sufficiently exclude the suspicion that it was unreasonably reached’.
[10] Consequently, Makara J ordered that:
‘1. Recruitment process at the stage of the appointment of the 3rd Respondent as the Principal of the 1st Respondent is reviewed, corrected and set aside.
2. The appointment of the 3rd Respondent as the principal of the 1st Respondent is declared null and void ab initio.”
Grounds of Appeal
[11] The appellants appealed against Makara J’s judgment and order. They assert that the court a quo erred and misdirected itself ‘by considering irrelevant matter about violation of procedural rights for the respondent to be informed of the reasons for non-appointment as
Principal…thereby misconstruing a courtesy for a non-existent right unsanctioned by section 42 of the Education Act of 2010’.
Parties’ submissions
[12] The appellants rely on s 42(1) of the Education Act and the authority of School Board of Mapoteng High School v Teaching Service Commission1, for the proposition that, contrary to the respondent’s case, the Commission is not bound by the School Board’s ranking. They argue that the High Court’s decision unduly constrained the Commission’s lawful discretion.
[13] For her part, the respondent maintains that the Commission should not have considered Ms Mamojalefa’s application due to alleged procedural deficiencies, and argued that her own exclusion from the School Board’s deliberations invalidated the process.
The law
[14] The Commission’s power to appoint teachers is vested under section 42(1) of the Education Act. Section 42 states:
‘42. Functions of the Teaching Service Commission
‘(1) The functions of the Commission are to appoint, promote, demote, transfer and remove from office teachers whose salaries are paid by Government.
(2) The Commission may advise the Minister on any matter related to the Teaching Service as it may find necessary or as the Minister may request.’
1 C of A (CIV) 7 of 20 [2020] LSCA 21 (30 October 2020) para 31.
[15] This Court held in the Mapoteng High School that:
‘All that was required was that, the Commission must exercise its discretion to appoint a candidate who had been recommended by the Appellant. What the first Respondent could not do, was to select for appointment, a person outside the list of candidates provided by the Appellant. There was no legal requirement for the Commission to follow the order of precedence of the candidates as tabled by the School Board.
…
In my opinion, the Commission is given broad powers in permissive language to appoint, promote, demote, transfer and remove from office teachers whose salaries are paid by government.’
[16] In other words, the discretion is broad, provided it is exercised rationally and within the bounds of the law.
Disposition
[17] In this matter, Ms Mamojalefa was not only duly qualified—holding a Master’s Degree as opposed to the respondent’s Bachelor’s—but she also had 22 years of experience, significantly more than the respondent's 14 years. She was shortlisted and emerged first on merit in the interview process and recommended by the School Board as the first choice. Thus she was in fact the preferred candidate. Even on the test established in Mapoteng High School, she would still not be disqualified if she came second, or third.
[18] Crucially, and contrary to the High Court’s finding otherwise, the record reflects that the School Board did not recommend the respondent. The School Board prepared an assessment of
qualifying candidates and identified Ms Mamojalefa, as its first choice. The respondent was ranked second.
[19] Although the respondent alleged that the Board had endorsed her as the preferred candidate, she did not produce objective evidence of such a recommendation. Her assertion is based on unverified information she received from someone that attended the meeting of the School Board when the assessment was done. The record contains no official document evidencing a recommendation by the School Board of the respondent as the preferred candidate.
[20] Therefore, it was a misdirection for the High Court to hold that the Commission failed to explain why it declined to act on a recommendation of the School Board in favor of the respondent, when no such recommendation existed. The Commission cannot be faulted for not explaining the rejection of a recommendation that had not, in fact, been made.
[21] In any event, the Commission was under no obligation to justify its choice from among the recommended candidates, absent allegations of illegality, irrationality, or malice. The High Court erred in treating the absence of reasons as a procedural flaw warranting the appointment’s nullification, especially where the appointment was based on objective qualifications and the Ms Mamojalefa’s superior performance.
Conclusion
[22] There is no merit in the respondent’s claims of procedural unfairness or irrationality. The Commission acted within its lawful powers, and the High Court’s conclusion was based on a factual and legal error and should be set aside.
[23] Counsel for the respondents submitted that his clients do not seek a costs order against the respondent, both a quo and in the appeal.
Order
1.
The appeal is upheld and the order of the High Court is set aside and replaced with the following:
“The application for review is dismissed and there is no order of costs.’’
2.
There is no order of costs in the appeal.
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P.T DAMASEB
ACTING JUSTICE OF APPEAL
I agree:
____________________________________
P MUSONDA
ACTING JUSTICE OF APPEAL
I agree:
_______________________________________
J. VAN DER WESTHUIZEN
ACTING JUSTICE OF APPEAL
FOR APPELLANTS: ADV M.J NKU
FOR RESPONDENT: ADV L.D MOLAPO