HIGH COURT OF LESOTHO
NATIONAL UNIVERSITY OF LESOTHO RESPONDENT
by the Honourable Mr. Justice G.N. Mofolo on the 10th day of August.
January, 2001 a letter which we reproduce in full below was written
to the applicant by the Acting Vice-Chancellor Dr. . Thikhoi Jonathan
National University of Lesotho
Chancellor, P.O. Roma 180
B.Ed, M.Ed (UBLS) Africa.
(UOFS) Telephone: Roma 340601/340269
(UMASS) Telegrams: Uniter, Roma, Lesotho
LO Telefax: 340000
THE VICE CHANCELLOR
8 January, 2001.
University of Lesotho,
its meeting of 4 January, 2001 recommended and advised the Acting
Vice-Chancellor that since council has authorised a Forensic Audit of
the Bursary to be carried soon, you should be barred from entering
pursuance of the powers vested in me under Section (16) (8) (b) of
the 1992 NUL Order, please note that you are excluded from any part
of the university premises until the forensic audit of the Bursary
has been completed.
hand in any university property that may be in your possession.
Hoping for your understanding and cooperation in the matter.
L. Thikhoi Jonathan Acting
receipt of the letter it would seem the applicant had approached
court on an application couched as follows:
take notice that an Application will be made to the above-mentioned
court on behalf of the Applicant herein on 29th June, 2001 at 9.30 in
the forenoon or so soon thereafter as the matter may be conveniently
heard for an order in the following terms:-
the Rules of this Honourable Court pertaining to the notice and
service be dispensed with and the matter be heard as of urgency.
a. Rule Nisi be issued returnable on the date and time to be
determined by this Honourable Court calling upon the Respondent to
show cause, if any, why:
respondent and/or its office shall not be interdicted forthwith
from unlawfully interfering with the applicant in the execution of
this duties pending determination of this application.
purported exclusion of the Applicant from the respondent's premises
shall not be set aside;
The respondent shall not be ordered to pay the costs of this
application in the event of opposing the orders sought herein.
Applicant shall not be granted such further and/or alternative
That prayer 1 and 2(a) operate with immediate effect in the interim.
brother Monapathi J. had granted the order that respondent be served
with the papers. Respondent having been served with the papers had
opposed the application. When counsel appeared before me it was
agreed that points in limine be argued together with merits of the
respondent's answering affidavit was an expansive rolling document
which hardly addressed itself to issues raised. Mr. Mosae's argument
before me was no different: pedantic and avoiding issues raised by
in his Founding Affidavit the applicant has said that he is Bursar of
the respondent. A bursar according to the Oxford Illustrated
2nd Ed. is a treasure of a college so that when the applicant was
written the above letter he was Treasurer of the respondent. The same
dictionary referred to above refers to a Treasurer as 'now one
responsible for funds of public body or any corporation, society or
club. The respondent can be safely classed as a corporation so that
in this court's view applicant's position with the respondent is no
mean one and deserves to be treated with candour and respect and not
off-handedly as if anything said or done to him did not matter.
paragraph 8 of the Founding Affidavit applicant has deposed:
respectfully submit that my purported exclusion is not only
prejudicial to me for being purposeless, but wrongful and improper
for the following reasons:
the vice-Chancellor decided to issue the banning order, I was never
offered an opportunity to make representation on the matter. I
respectfully submit that in my position as the University Bursar I
have a legitimate expectation to be heard when a drastic step like
excluding me from the University in general and my office in
particular was contemplated.
excluding me from the University the vice-Chancellor purports to have
acted on the recommendation and advise of Senate, I respectfully
submit that since the Senate has no power to recommend and/or advise
the vice-Chancellor in the manner it did, the vice-Chancellor has
failed to exercise the discretion vested in her, and/or she exercised
such discretion improperly.
excluding me from the University the vice-Chancellor appears to have
had no other apparent basis for exercising the discretion except the
recommendation and advise of Senate.
exclusion contemplated by section 16(8), (b) of the 1992 N.U.L. Order
is purely aimed at maintaining and promoting the efficiency and good
order of the University. I respectfully submit that no basis
whatsoever has been laid in the vice-Chancellor letter of exclusion,
that maintenance of efficiency and good order of the University was
at stake. Even if some basis whatsoever was laid, I still maintain
that I was entitled and I legitimately expected to be heard.
vice-Chancellor's act of excluding me as she did smacks of
discrimination and some ulterior motives
in that I
have been singled out of the staff of about 20. The intended forensic
audit is aimed at and to be carried on the Bursary. I am a Bursar. No
explanation whatsoever, has been given as to why the investigation
has to be carried out in my absence and/or to my exclusion.
court is concerned with whether the applicant can, in law, be barred
and excluded from university premises without being heard. Whether it
is justifiable that without being heard he should 'hand in any
university property that may be in' his possession. As to the
doctrine of audi alterant pattern, according to Prest (The Law and
Practice of Interdicts, Juta &. C. Ltd., 1996 at p.223, 'however
urgent a matter may appear to be, and however anxious an applicant
may be to obtain his relief, a court is seldom willing to come to the
assistance of a party without giving the other party the opportunity
to state his case. I may add, however satisfied a party is with the
bona fides of a party before it, it will not take drastic steps
against the offending party before hearing it. It has been said so
firmly entrenched in the South African justice is the principle of
audi alteram partem that the maxim has been described by the
Appellate Division as 'sacred' - see Sachs v. Minister of Justice;
Diamond v. Minister of Justice, 1934 AD. 11 t 38 and cases quoted at
footnote 64 p.223 of Prest, The Law and Practice of
case as I have shown above from applicant's Founding Affidavit he has
shown that he has civil rights and interests which were prejudicially
affected - see Mankatshu v. Old Apostolic Church of Africa and
Others, 1994 (2) SA. 458 (TKA) at 462; see also Seloadi and Others v.
Sun International (Buphuthatswana) Ltyd., 1993 (2) SA. 174 (B) at 179
- 180; S. v.Dobson, 1993 (4) SA. 55 (E); Masinga v. Minister of
Justice, Kwazulu Government, 1955 (3) SA. 214 (A) at 221 - 224 B.
to H.W.R. Wade in 10 Cambridge Law Journal 216 at 228, 'as a general
rule it may be said that rules of natural justice must be complied
with in a quasi-judicial act. The act complained of must of course be
performed in the exercise of a discretion and the organ is to be
established normally from its rules vested with free discretionary
power and may decide for itself about the desirability and efficacy
of its choice; in such a case no court will prescribe to it how it is
to make its choice. This notwithstanding, the organ cannot exceed its
powers or use its powers for an ulterior motive or fail to apply its
mind to the matter - see Johannesburg Consolidated Investment Co. v.
Johannesburg Town Council, 1913 T.S. Ill at 115; Union Government
(Minister of Mines and Industries) v. Union Steel Corp. (SA.) Ltd,
220 at 224. From these cases it emerges that if a discretion is
conferred by statute upon an individual and he fails to appreciate
the nature of that discretion through misreading the Act which
confers it, he cannot and does not properly exercise that discretion.
In such a case a court of law will correct him and order him to
direct his mind to the true question which has been left to his
It is to
be understood that though the organ has a free discretion this does
not mean that such a discretion stands outside the law and is not
bound by law - it still has to adhere to rules laid down by law.
other hand, according to judgment in cases above, there is what is
termed circumscribed administrative discretion which is of course
circumscribed and limited; here the number of options is limited by
statute and circumscribed under which the discretion is to be
exercised and is clearly defined by the statute. According to this,
jurisdictional facts are employed being those facts and circumstances
which determine the powers of the organ and the existence of such
facts may be established by a court of law and if the facts and
circumstances do not exist, the discretion may not be exercised.
Accordingly, where, for example, the statute provides that an
administrative organ may make an eviction or bar an individual as in
case, circumstances should prevail to warrant or prompt the organ
into exercising the discretion under the law. A case in point is
where teachers or employees are on strike; if the authorities fear
there might be violence and property damaged, it is in order to lock
our or as it were restrict and/or exclude striking teachers from
school or university property. As Mr. Mosae correctly conceded,
applicant is not guilty of any malfeasance and yet visitations on the
applicant are drastic and to be feared these coming, as it were, out
of the blue and not against the backdrop of Ernst & Young,
Lutaru/Nawu recommendations. I am not saying respondent would only
act were there such recommendations, I am saying circumstances did
not warrant drastic steps taken against the applicant.
before this court and in his heads of argument has contended that the
respondent acted as it did to apply the law as authorised by the
relevant section of the order under which it acted. Now, the relevant
section is 16(8) (b) of Order No. 19 of 1992. Sub-section (8) reads:-
pursuance of this powers under subsection (7) the vice-Chancellor
any student or member of staff of the University from any part of
the University premises.
sub-section 7 reads:
vice-Chancellor shall, subject to this order and the status, have a
general responsibility to the council for maintaining and promoting
the efficiency and good order of the University.
understand subsection 7, the law gives the vice-Chancellor discretion
to deal with students and members of the staff who are out of order
or inefficient vices the applicant is not associated with. Having
said this, I must caution that even where the vice-Chancellor has
applied the subsection it does not mean that the court is
precluded from inquiring whether in so acting the law was followed.
It is also to be observed that 'may' in subsection 8 is
directory and not peremptory or as it were imperative thus giving the
vice-Chancellor a wide discretion in the circumstances.
taken a close look at the law applicable and the interpretation
clauses thereof and have found that there is no interpretation of the
term 'exclude.' However, the Concise Oxford Dictionary 8th Ed.
describes 'exclude' as 'shut or keep out (a person or thing) from a
place, group or privilege, etc.; 'expel or shut out/ Expel is
described in the same dictionary as 'deprive (a person) of the
membership or involvement in (a school,
etc.)';'order or force to leave a building, etc.' In this court's
view, nothing can be worse than being excluded from membership or a
building without being heard. What's unheard of, the letter of
exclusion by the vice-Chancellor referred to above requires the
applicant to in addition hand over or as is said 'hand in any
university property that may be in your possession.' As this court
sees things, the vice-Chancellor went an extra mile without hearing
applicant. Moreover, unless I am mistaken, in the law that the
vice-Chancellor applied nowhere does it authorise him or her in
addition to exclusion, to order that university property be handed
over. Respondent by his/her act dismembered the applicant from the
day to day activities of the respondent as if a determination against
the applicant had been arrived at. Even were there such a
determination, it cannot be made without hearing the applicant.
course in the instant case it is to be assumed the vice-Chancellor
after reviewing prevailing circumstances (albeit wrongly) such
circumstances being a report and recommendations of Ernst and Young,
Presidents of Lutaru and Nawu which concerned themselves with
restructuring and effective management of respondent's resources by
means of 'an audit committee and internal audit department.' The
recommendations are wide ranging covering every aspect of
respondent's responsibility. Ernst and
have in particular advocated that the result of forensic audit is
that employees who are unproductive and incompetent can be
identified; also 'to be undertaken to substantiate or dispel the
allegations that have been made regarding the validity of certain
expenditure items.' On the other hand, Lutaru and Nawu referred to
above have listed a number of financial improprieties among them
being concerning a contractor, extension of the bursary, covering a
car ports, etc, construction of gates at I.E.M.S, carpeting of
Highlands, etc, purchase of photocopies, contracts for the supply of
furniture ,privatisation of cleaning services of the University on
the Taung Skills Centre in Liphiring. In particular Lutaru and Nawu
have complained of 'some individuals are lining their pockets with
University funds through these and other schemes'. Nowhere in the
recommendations has the forensic team advised the respondent to take
steps if anything against the university staff concerned in the
As I have
demonstrated above, recommendations by Ernst and Young plus Lutaru
and Nawu can safely be termed jurisdictional facts which, in the
exercise of its discretion respondent should have taken into account.
Noticeably, the recommendations and as it were, jurisdictional facts
were wide ranging and inclusive covering every aspect of the
respondents activity. In adverting to the order under which the
respondent acted, he or she should
addressed her mind to the aforesaid recommendations or as it were
jurisdictional facts and I find it failed to do this. As I have said,
a Bursar is a Treasurer who overseas respondent's treasurers. The
respondent has described the applicant as 'a senior officer of the
respondent' (vide para. 7 of the Answering Affidavit) and I shudder
to reflect that such a senior officer of the respondent was treated
so shabbily. In any event, under a Bursar are several mini bursars
accountable to the Bursar engaged in daily transactions. Although he
is responsible for overall management, he is not immediately
accountable until an audit inquiry has revealed otherwise. I find the
exercise by the respondent to have been presumptuous and pre-emptive
- something this court cannot allow.
subject matter of audi rule has been dealt with extensively by our
courts and hardly requires recapitulation. It is an old hat trampled
upon by courts of law for years on end. Whether we are academics or
socialites, it does not mean that principles of natural justice are
hidden away from us because by nature we are endowed with them. If
your child is assaulted by another, you do not go for the aggressor
before hearing him. It can never be, my child has told me what you
did to him and I am not listening to you. If you do, you will be
rightly accused by bipartismship. Ours is civilised society which
cannot be allowed to ignore elementary rules of daily social
Hearing the other side before acting pre-empts accusations of
selective morality and one-sidedness. Much as it is denied by Mr.
Mosae that there were accusations against the applicant who continues
to receive his salary, it was incumbent on the respondent to hear
from the applicant why sanctions imposed on him were not justifiable.
These were no ordinary sanctions for they deprived applicant of his
rights, privileges and freedom of association without being heard.
natural justice are nothing but that where individual rights,
privileges and immunities are going to be interfered with it is
desirable that the subject should be heard. Principles of natural
justice are no more than an expression of the rule of law where a
person's rights, privileges and liberties cannot be curtailed or
extinguished except by due process of law. The law frowns on
arbitrary action against a subject. It is arbitrary to deprive a
subject and in this case the applicant without hearing him in a
matter that was not brought about by him but by exigencies of the
found the applicant to have complied with requirements of an ex-parte
application in that the urgency arose on the occasion of the
applicant having to resume duties from his Sabbatical leave.
Sufficient reasons prompting urgency were canvassed in applicant's
this court grants the application with costs to the applicant.
Applicant: Mr. Mahlakeng
Respondent: Mr. Mosae
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