HIGH COURT OF LESOTHO
Application' of :
NATIONAL UNIVERSITY OF LESOTHO Respondent
by the Hon. Acting Mr. Justice M. Lehohla on the 11th day of May,
seised of this matter which came before me ex parte on an urgent
basis on 2nd May 1988 at about 8.00 p.m. at my residence.
thrust of the application was that respondent be restrained from
preventing applicant from sitting his end of the year examinations
beginning on 3rd May, 1988 and ending on 14th May, 1988 pending the
finalisation of this application and or an appeal against the
decision of the respondent's senate.
perusal of the papers brought before me by Mr. Makara the Assistant
Registrar of this Court and Mr. Phafane for applicant I observed
paragraph 8 of applicant's affidavit states that
"On 19th April, 1988, I was found guilty as charged and the
Discipline Committee of senate recommended to the senate that
rusticated from the University for a period of two years ......"
part of which was suspended for a year. In paragraph 5 the applicant
"The said charge was for contravention of articles .1.1, 1.3 and
1.9 of the Discipline Regulations of the Respondent."
this averment is lacking most curiously of details leading to the
incident which might have occurred to constitute contravention
Senate as it was entitled to do removed the suspension and resolved
to have applicant rusticated from the University with immediate
effect for a period of (according to him) two years which however
(according to the minutes of the Senate Discipline Committee)
shown to be for a period of one year.
taken the view at first blush that the University through its agents
cannot take such harsh measures against a student unless
more to the acts complained of against applicant than was revealed on
the papers, I told Mr. Phefane that applicant's
sufficient information to enable me to grant the order.
accordingly left with a promise that he would see to it that he would
attend to the insufficiency referred to. I undertook to
this matter as soon as the defect in it had been put right.
May 1988 it came to my notice that the order had been sought before
another judge and granted, I was satisfied with explanations
both in my Chambers and in Court that it was not the intention of
applicant's Counsel to play one judge off against the other.
matter was referred to me for final determination on 11th May 1988 I
was satisfied that the supplementary affidavit date
- stamped 3rd May
1988 was brought along with the rest of the papers which bore an
identical date stamp. The supplementary affidavit
reeds in paragraph
"I wish to add to paragraph 5 of my founding affidavit that the
charge against me arose out of a fight I had with some students
had to use a knife as a weapon."
the view that contents of this supplementary affidavit constitute the
most crucial information which should not have been
omitted in the
first instance. The fact that this information was not laid bare at
that stage is telling against applicant's bona.
fides. It is doubtful
whether before granting the order the Chief Justice's attention was
drawn to it at all regard being had to
its smallness in size and the
rush that I em made to understand he was subject to that morning when
after allocating this matter
to another judge it seemed such judge
was not available with the result that this matter was sent back to
him even as he was preparing
to attend. to other pressing matters
awaiting his immediate attention. See Republic Motors vs. Lytton Road
Service Station 1971(2)
S.A. at 518.
Meubel Vervaardigers vs Makin & Another 1977(4) S.A. at 137 it
was held that
"........ These practitioners then feel at large to select any
day of the week and any time of the day (or night) to demand
hearing. This is quite intolerable and is calculated to reduce the
good order which is necessary for the dignified functioning
Court to shambles."
Emiram (Pty) Ltd. vs New Woodhole Hotel 1967(c) S.A. at 493 and ex
parte Walton 1969(3) S.A. at 342. May I caution that
the court should
as much as possible be in possession of all relevant facts before it
makes an order affecting the other party,
lest, through lack of
knowledge of the true facts it make an order that excites to
disrespect of Court process. What institution
would tolerate the use
of a knife in its midst? The Discipline Committee cannot lightly be
held wanting in discharging responsibly
the function entrusted to it
in the University Community. There cannot be any argument that unless
the application was made ex
parte as against on notice on an urgent
basis the University would frustrate the course of justice.
perverse conduct could be said to have been apprehended on the part
of the respondent.
applicant's rustication coincides with the time of sitting his
examinations properly shows the disapproval with which the University
regards the gravity of his offence. The University's teeth are few
and far in between. It cannot send an offender to prison yet
to enforce discipline in an attempt to ensure the safety of members
of its community. It is thus not proper to frustrate
its efforts to
impose a penalty that meets the offence simply because the culprit
has some examinations to write at the material
time when the penalty
is to take effect. Argument based on such view won't stand
examination. Nothing is irregular with the penalty.
grin and beer it.
clear to me that applicant according to the University statute
relevant to this application has no right of appeal except
if he was
dismissed. It cannot avail him to approach this Court to seek a
review of the proceedings before the Discipline Committee
when as it
seems there is no irregularity in these proceedings. Furthermore the
fact that he used a knife in his fight with others
but had to be
asked what could have caused the University to take such drastic
steps against him before he could be forthcoming
with the information
casts a long shadow on his initial bona fides. The fact that he
ultimately lay bare this aspect of the matter
does not detract from
the observation that he had something to hide. He only furnished it
when he realised that it would surface
in any case at the instance of
the other party. It is not wrong to infer that he was aware that if
he disclosed it in the founding
affidavit it would have been
discharged. It is not necessary to deal with other arguments
traversed in this application.
accordingly discharged the rule with costs.
Applicant : Mr. Phafane
Respondent: Mr. Matsau
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law