Lesotho College of Education Staff Union V The Governing Council-Lesotho College of Education & 4 Others (CIV/APN/0175/2024) [2024] LSHC 119 (23 July 2024)

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IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/0175/2024
In the matter between:
LESOTHO COLLEGE OF EDUCATION APPLICANT
STAFF UNION
and
GOVERNING COUNCIL - LESOTHO 1st RESPONDENT
COLLEGE OF EDUCATION
LESOTHO COLLEGE OF EDUCATION 2nd RESPONDENT
MINISTER OF EDUCATION AND TRAINING 3rd RESPONDENT
DR. MOEKETSI LETELE 4th RESPONDENT
ATTORNEY - GENERAL 5th RESPONDENT
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Neutral citation : Lesotho College of Education Staff Union v Governing Council - Lesotho College of Education and 4 Others [2024] LSHC 119 Civ (23 July, 2024)
CORAM : KHABO J.,
HEARD : 11 July 2024
DELIVERED : 23 July 2024
SUMMARY
Practice and procedure - Interim/ interdictory reliefs - Applicant seeking interim reliefs some of which are interdictory in nature pending finalisation of this matter - In reaction, 1st and 2nd Respondent’s Counsel raising several points of law, namely, lack of urgency; that the Applicant has no locus standi in judicio; that the application has been brought prematurely; that there is non - joinder of interested parties; and non-compliance with the High Court Civil Litigation Rules, 2024 - Court finds the Applicant to lack the necessary locus standi to institute the present proceedings.
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ANNOTATIONS
Statutes and subsidiary legislation
Constitution of Lesotho, 1993
High Court Civil Litigation Rules, 2024
Higher Education Act, 2004
Lesotho College of Education Act, 1997
Cases cited
Lesotho
Khauoe Thabang Khauoe v The Attorney - General and Another CIV/APN/53/95
Lesotho Human Rights Alert Group v the Minister of Justice and Human Rights and 2 Others C of A (CIV) No. 27/94
`Makoetle Mofolo - Nts`ihlele and 3 Others v Qamo Matela and 7 Others CIV/APN /337/2021) [2021] LSHC 52 (22 October 2021)
Ts`ekelo v Majalle LAC (2000 - 2004) 606
Other jurisdictions
AAIL (SA) v Muslim Judicial Council 1983(4) S.A. 855 (CPD)
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Books
Harms D., Adv., SC in Civil Procedure in the Superior Courts, LexisNexis, Butterworths
Herbstein & Van Winsen - The Civil Practice of the High Courts of South Africa (2009) 5th ed., Vol.1
Jones and Buckle - Jones and Buckle - The Civil Practice of the Magistrates’ Courts in South Africa, 7th ed., Vol.1, Juta and Company Limited, 1980
Jones and Buckle - The Civil Practice of the Magistrates’ Courts in South Africa, 8th ed., Vol. 1, Juta and Company Ltd, 1988
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JUDGMENT
KHABO J.,
Introduction
[1] The Applicant is seeking that the Lesotho College of Education’s (the College) recruitment process for the position of Rector be set aside for non - compliance with the law and established practice at the College whereby advertisements for statutory positions are advertised externally, and not internally.
[2] It is common cause that the College, 2nd Respondent herein, issued an internal advertisement1 wherein it sought to fill the position of Rector. The Applicant avers that this internal advertisement is fraught with irregularities as it flouts the long-standing customary practice of having statutory positions including that of Rector advertised externally.
1 Annexure ‘LSU3’ to Applicant’s founding affidavit
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Prayers sought
[3] Aggrieved by this internal advertisement for the position of Rector, the Applicant launched the present application in which it sought an order in the following terms:
1.
Dispensing with the ordinary Rules of Court pertaining to periods and modes of service of process owing to the urgency of this matter;
2.
That a Rule Nisi be and is hereby issued returnable on a date and time to be determined by this Honourable Court calling upon the Respondents to show cause (if any) why:
a)
the recommendation of the first respondent that the fourth respondent be appointed as Rector of the second respondent, shall not be held in abeyance pending final determination hereof;
b) the third respondent shall not be restrained and interdicted from appointing the 3rd respondent (sic) to the position of
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Rector of the second respondent pending final determination hereof;
c) the recruitment process for the position of Rector of the second respondent shall not be set aside for lack of compliance with the law and the established practice at the second respondent;
d) the respondent herein shall not be directed to pay costs of this application in the event of opposing same;
e) the applicant shall not be granted such further and / or alternative relief.
3.
That prayers (1), 2(a), and 2(b) operate with immediate effect as interim orders.
[4] In reaction, 1st and 2nd Respondents’ Counsel raised the following points in limine:
(a)
lack of jurisdiction;
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(b)
lack of urgency;
(c)
that the Applicant has no locus standi in judicio for the reliefs sought against the Respondents;
(d)
that the application has been brought prematurely, alleging that recruitment is a managerial prerogative;
(e)
non-joinder of interested parties, and
(f)
non-compliance with Rule 66 (2) (c) of the High Court Civil Litigation Rules, 2024).
[5] It is worth mentioning at this juncture that the question of jurisdiction was disposed of first with the court ruling that it has jurisdiction in the matter, it being a review of an administrative decision as envisaged by Section 119 (1) of the Constitution of Lesotho, 1993. Having passed the jurisdiction hurdle, the next critical point is that of locus standi in judicio because anyone who approaches the court must have a legal standing to do so. It is 1st and 2nd Respondents’ Counsel’s case that the Applicant, a staff union, lacks a direct and substantial interest in the reliefs they are seeking which revolve on the appointment of the College’s Rector.
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[6] 1st and 2nd Respondents’ Counsel’s objection to Applicant’s legal standing to institute these proceedings is two - pronged. Firstly, that the Applicant is not an actual person and secondly, that the Applicant is not alleging that it is representing any person or persons who could have a direct personal interest to have applied for the position were it not for the alleged irregularity of advertising it internally. This refers to persons actually or likely to be prejudiced by the recruitment process. Applicant’s Counsel contends that locus standi and non - joinder impinge on the merits and cannot be entertained by the Judge ‘on call.’
The law on locus standi in judicio/legal standing
[7] Defining the concept of locus standi in judicio, the Court in `Makoetle Mofolo - Nts`ihlele and 3 Others v Qamo Matela and 7 Others2 quoting with approval the learned authors Herbstein & Van Winsen3 had the following to say that locus
2 CIV/APN /337/2021 [2021] LSHC 52 (22 October 2021) at p. 9 para. 7
3 Herbstein & Van Winsen - The Civil Practice of the High Courts of South Africa (2009) 5th ed., Vol.1 p.143
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standi “has two very important facets to it: It relates to the capacity of a litigant to sue or institute proceedings. Secondly, it refers to the interest that a party or litigant has in the reliefs he/she is seeking. As it is commonly said, the litigant must have a direct and substantial interest in the reliefs he/she is seeking, not just a mere interest.”
[8] The test is succinctly captured in AAIL (SA) v Muslim Judicial Council4 per Tebbutt J., that the person who sues must:
(a) have an interest in the subject - matter of the suit; and
(b) such an interest must be a direct one.
[9] The case was cited with approval in Khauoe Thabang Khauoe v The Attorney - General and Another.5 What is required is a legal interest in the subject - matter of the action which could be prejudicially affected by the judgment of the court. I wish to underscore the word ‘legal’ not just an interest.
41983(4) S.A. 855 (CPD) at 863H - 864 A
5CIV/APN/53/95
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[10] The facts relevant to the locus standi of a party who sues must always be alleged in the founding papers. As put by Adv., D. Harms SC in Civil Procedure in the Superior Courts6 in the founding affidavit, the litigant has a duty cast upon it to allege that he or she has locus standi.
[11] In alleging locus standi, the Applicant avers that it has a direct and substantial interest in the subject matter and its outcome.7 It relies for this assertion on Article 5 (e) of its Constitution8 which sets out as one of its objectives the duty to “represent its members in all decision - making bodies of the College.” It, therefore, states that it has a duty to intervene in the recruitment process of the College’s Rector as it feels it is not being conducted properly.
[12] As it is, the Applicant relies on the locus standi that allegedly flows from its own legal instrument. The question then becomes whether the above objective was translated into a
6 LexisNexis, Butterworths at A - 55
7 Para. 4 of the founding affidavit
8 attached to the founding affidavit as ‘LSU 1’
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working arrangement with the College. The Applicant as the name suggests is a trade union. I sifted through the various pieces of legislation relevant to the College including the Lesotho College of Education Act, 19979 and came across Section 7 which tabulated a list of members of the Governing Council, a body responsible, among others, for the appointment of a Rector.
Analysis
[13] Starting with whether locus standi and non - joinder go to the merits of the case, and should, therefore, not be determined by a Judge ‘on call’ as argued by Applicant’s Counsel. As a standing practice, it is the duty of the Judge ‘on call’ to determine all interlocutory prayers where an Applicant seeks to have a matter disposed of urgently. The Judge ‘on call’ is not able to determine urgency where issues such as jurisdiction, locus standi and joinder have not been traversed.
9 Act No. 2 of 1998
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[14] Besides Applicant’s averments founding locus standi, it can also be ascertainable from the nature of the reliefs sought. As aforementioned, some of the reliefs sought by the Applicant are interdictory in nature. For instance, in prayer 2 (b) of the notice of motion the Applicant seeks that the “third respondent … be restrained and interdicted from appointing the [fourth] respondent to the position of Rector of the second respondent pending final determination hereof.”
[15] According to some of the eminent authors on Civil Procedure, Jones and Buckle,10 a person who applies for an interdict must be a person having locus standi to apply and must show that he or she has an interest in the subject - matter of the interdict. The interest may be financial, as it usually is, or any other legal interest. The learned authors further point out that a mere moral interest is insufficient to ground an interdict. The Applicant, therefore, has a duty to proof that one of its members or some of them have a direct interest in the conduct of process for the appointment of the College’s Rector, the
10 The Civil Practice of the Magistrates’ Courts in South Africa 7th ed, Vol.1, Juta and Company Limited, 1979 at p. 423
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subject - matter of the current dispute to warrant the institution of this case.
[16] The court in Ts`ekelo v Majalle11 refused to grant an application where the Appellant (Applicant in the High Court) wanted some property on behalf of a security company on the basis that he lacked locus standi in that he failed to allege that he acted in a representative capacity. The court concluded that the Applicant/Appellant had no direct interest in the company. Clearly, the interested party was the security company which was unfortunately not joined.
[17] The duty to appoint the Rector is entrusted in the Governing Council of the College, 1st Respondent herein in terms of Section 10 (3) (q) of the Lesotho College of Education Act, 1997 read with Sections 18 (3), 22 (2) (c) and 52 (1), (2), and (3) of the Higher Education Act, 2004.12 This power extends to the appointment of the Deputy Rector (Academic Affairs), Deputy Rector (Administration), the Registrar, the Bursar and
11 LAC (2000 - 2004) 606
12 Act No. 1 of 2004
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the Librarian of the College. The Governing Council is established in terms of Section 7 (1) of the Lesotho College of Education Act, 1997.
[18] The Applicant avers that it “is entitled to partake in terms of the law in the conduct of the affairs of the second respondent including the first respondent, be it directly and/or through its chosen representatives in different structures.”13 This averment, however, falls short of stating the law that entitles it to partake in the conduct 2nd Respondent’s affairs in the context of this case. This is but a bare allegation.
[19] The court in Lesotho Human Rights Alert Group v the Minister of Justice and Human Rights and 2 Others14 stated that the fact that the Applicant is an attorney, a citizen of Lesotho, a direct or substantial interest in the succession to the office of the King of Lesotho. The court pointed out further that this is not a case where the liberty of the subject is involved in which an action can be brought by a person who
13 Para. 7 of the founding affidavit
14 C of A (CIV) No. 27/94 at pp. 8 - 9
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has no direct or substantial interest in the subject matter. The subject matter in the case was the succession to the office of the King of Lesotho.
[20] The court went further to point out that the person entitled to object to the succession to the office of the King of Lesotho is someone who has a right to succeed to the office. Applying this principle to the case before us, the people who have a direct and substantial interest in the appointment of the Rector of the College are those who are potential candidates or if the Applicant was to allege that it is suing on behalf of its members and clearly state the direct and substantial interest in the subject - matter of the dispute. The Applicant makes no averment to this effect to establish locus standi.
Non - Joinder
[21] The test for the special plea of locus standi is the same as that of non - joinder. They are intertwined, with the latter referring
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to “an omission to join a necessary party.”15 The test for non - joinder is also a:
direct and substantial interest,’ and the rule is that any person who has a ‘direct and substantial interest’ in any order the court might make, or who is bound to be affected prejudicially by the putting into effect of a court order, is a necessary party and should be joined.16
Where the party is a necessary party, the court will not deal with the issues until joinder of such a party has been effected.
Conclusion
[22] In my considered view, the Applicant has not established a ‘direct and substantial interest’ as required by the law, and as such, this application is bound not to succeed. With Applicant not having a legal standing before this court in respect of this
15Jones and Buckle - The Civil Practice of the Magistrates’ Courts in South Africa, 7th ed., Vol.1 Juta and Company Limited, 1980 at p. 143
16Jones and Buckle - The Civil Practice of the Magistrates’ Courts in South Africa, 8th ed., Vol. 1, Juta and Company Ltd, 1988 at p.162
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matter, there is no need to traverse the other points of law raised by the 1st and 2nd Respondents’ Counsel.
ORDER
[23] In the result, the court makes the following order that:
(a)
The Applicant has no locus standi in the reliefs it is seeking;
(b)
The application is dismissed; and
(c)
Costs shall follow the event.
_________________
F.M. KHABO
JUDGE
For the Applicant : Adv., R.P. Pitso
For the 1st and 2nd Respondents : Adv., B.T. Mokobori
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For the 3rd and 5th Respondents : Adv., L. Moshoeshoe