HIGH COURT OF LESOTHO
MASIA (Duly assisted by Her husband 1st Applicant
KONANE (Duly assisted by her husband 2nd Applicant
JOHN (DULY ASSISTED BY HER HUSBAND) 3rd Applicant
MPHAOLOLI 1st Respondent
KOSIE (Duly assisted by her husband) 2nd Respondent
MOHAPELOA 3rd Respondent
MAKHELE (Duly assisted by her husband) 4th Respondent
KHAKA 5th Respondent
ADOKAR 6th Respondent
MACHAI 7th Respondent
MOTSAMAI 8th Respondent
(Duly assisted by her husband) 9th Respondent
ENGLISH MEDIUM SCHOOL 11th Respondent
by the Honourable Mr. Justice J.L. Kheola on the 30th day of
an application for an order in the following terms:
a rule nisi do hereby issue calling upon the Respondents to show
cause, if any, on a date to be determined by this Honourable
normal periods of service prescribed by the rules of Court shall
not be dispensed with on
the basis of urgency of this matter.
to Tenth Respondents shall not be interdicted from exercising the
functions of the Board of Directors of the school.
Respondent shall not be interdicted from exercising the functions of
the Board of the Directors of the school without due
and permission of the lawful Board of the school in terms of the
to Tenth Respondents shall not be interdicted from amending and\or
replacing the present constitution of the school or in
interfering with the smooth running of the school pending
determination of this application.
Board of Directors of the school that was exercising functions as
such prior to the 24th October, 1993 shall not be declared
lawful Board of the school.
election of Second to Tenth Respondents as new members of the Board
of Directors of the school shall not be declared null
to Tenth Respondents shall not be ordered to pay the costs hereof.
shall not be granted any further and\or alternative relief.
Rules 1 (b) (c) and (d) should operate with immediate effect as
29th October, 1993 the applicants were ordered to serve the
respondents and the application was set down for hearing on the
November, 1993. Several postponements followed until the matter was
argued on the 4th and the 5th November, 1993 when judgment
common cause that the eleventh respondent (the school) was
established in March, 1992. In terms of Article 4 of the constitution
of the school the proprietorship of the school was vested in Board of
Directors which included the founders of the school, namely,
first applicant, the first and second respondents. In terms of
Article 5 (b) of the constitution of the school the founders
school were made permanent members of the Board of Directors of the
17th May, 1993 the Board of Management of the school wrote a letter
to the Registrar of Deeds informing her of the resolution
made on the
14th May, 1993 amending Article 4 of the constitution of the school.
The letter reads as follows:
Registrar of Deeds,
a meeting of Board of Management held on 14\5\93, at Unity English
Medium School, site No.523, Pope John Paul II Road,
unanimously resolved that, "Section Four (4) of the School
Constitution No.92\26, of which a copy is in your office,
amendment to be made is to read as follows:
"Unity English Medium School (COMMUNITY)
aforesaid amendment will differ from the initial endorsement which
read: "the proprietorship of the school is vested in
of Directors with founders inclusive)"
be grateful if the contents of this letter will be explicit and this
matter be treated accordingly.
MPHAOLOLI (Mr) (Sad). Lizzy John B Masia
of Board Secretary of Board Treasurer
It is to
be noted that that resolution to amend Article 4 of the constitution
was reached by a unanimous vote and that the first
first respondent and the third respondent signed the letter to the
Registrar of Deeds (Annexure "MM2").
It follows that at the
moment the school is now a community school i.e. its proprietorship
vests in the community and not in "the
Board of Directors with
founders inclusive." As far as I can establish from the
averments in the affidavits of the parties
the applicants are not
challenging the amendment of Article 4 of the constitution but they
are challenging the constitutinality
of the events that followed the
conversion of the school into a community school.
applicant alleges that on the 18th October, 1993 the first respondent
called a special parents' meeting for the 24th October,
letter invited the parents to, inter alia, elect the Board of
Directors and the committee because the first respondent
the present Board was not elected but nominated. The first applicant
alleges that the special meeting at which a new
Board of Directors
was elected was unconstitutional in that it was not held in terms of
Article 10 (b) which provides that notice
of the meeting shall be
sent to all school parents two (2) weeks before the meeting. The
period of notice given to the parents
was only six (6) days.
that the meeting was also unconstitutional in that Article 11 (a)
requires that such a meeting should be called after
the Head of the school. In this respect she refers to the affidavit
of the third respondent who confirms that
as Head of the school she
was not consulted.
applicants attended the parents' meeting of the 24th October, 1993.
They raised their objection that the meeting was unconstitutional
they were ignored. The new Board of Directors was elected by the
questions to be decided by the Court are: what was the effect on the
constitution of changing the proprietorship of the
a community school? Did that constitution which was meant for a
private school continue to have full effect after the
school became a
fully fledged community school? It seems to me that the answer must
be that as soon as the amendment was made to
the constitution that
the school was a community school the existing constitution became
ineffectual and irrelevant. The first
respondent did the right thing
to call the parents' meeting to elect a new Board who would draft a
the view that the constitution which was meant for a private school
could no longer be suitable after the unanimous decision
proprietorship of the school then vested in the school (community).
The process of converting the school into a community
be done by a single act of informing the Registrar of Deeds to record
the change in her records and stop there. It
is a continuing process
which involved, as the next step, the election of the new Board of
Directors who would draft a new constitution
for the new school. The
applicants cannot be heard to say that after their unanimous decision
that the school should be changed
to a community school there should
' be a stalemate as to how that should be done.
respondent is the Manager of the school and Chairman of the Board of
Directors. As such he was under an obligation to
decision of the Board to change the
into a fully fledged community school. During the transitional period
no vacuum could be allowed. The Management Committee
had to carry out
the job of converting the school into a community school according to
the unanimous decision.
interesting to note that in paragraph 6 of her replying affidavit the
first applicant is now saying that in terms of Article
5 (b) of the
constitution the amendment which was made by a unanimous assent is
invalid because there was no compliance with the
Article 16 of the constitution. It will be seen that she was a party
to that unanimous assent. It seems to me that
she is now estopped
from turning round.
true that the constitution of an association together with all rules
and regulations collectively constitute a contract which
into by the members (See EX Parte United Party Club 1930 W.L.D. 277
at p. 280). This contract is the crucial factor
in the existence of
an association. It not only determines the nature and scope of the
associations existence and activities, but
also, where necessary to
do so, prescribes and demarcates the powers of, inter alia, the
executive committee, secretary and general
meeting, expresses and
regulates the rights of members and provides for certain procedural
aspects (See The Law of South Africa,
Vol 1 paragraph 499).
It was in
the light of these overwhelming powers of the constitution of an
association or society that, apparently, Mrs Makara,
attorney for the
respondents, resorted to the principle of "unanimous assent"
in company law cases. In Cilliers, Benade
& De Villiers in
Company Law, 3rd edition at p. 222 the learned authors write that:
"Despite the general rule that corporate decisions are to be
taken at properly constituted meetings of the company and not
obtaining the separately given individual assent of members, a long
line of South African and English decisions recognize that
can perform certain acts validly without any meeting being held,
provided that all members were fully aware of what was
being done and
unanimously assented thereto'
Hahlo - South African Company Law through the cases - Third Edition
page 317 who states that:
"In a number of cases English and South African Courts have
treated informal, unanimous assent of the shareholders as the
equivalent of a formal resolution, passed at a properly convened
Fourth Edition of the same book published 7 years later in 1984, the
learned author writes: (Page 311)
"It is settled law by now that any intra vires act which can be
authorised by the company in general meeting can also be authorised
by the informal unanimous assent of all the shareholders."
referred to the English case of Parker & Cooper Ltd. v. Reading
(1926)Ch 975, the directors of a company had created a debenture
proceedings were commenced to establish that the debenture and the
resolution which authorised its issue and the appointment
certain receiver under it were invalid. Astbury J. referred to
earlier decisions and himself expressed the view at 984 at
"Now the view I take ----- is that where the transaction is
intra vires and honest, and especially.
if it is for the benefit of the company, it cannot be upset if the
assent of all the corporators is given to it. I do not think
matters in the least whether the assent is given at different times
In another English case much later, In re Bailey, Hay & Co Ltd
(1971) 1 WLR, (1971 3 All ER 683 notices for an extraordinary
meeting to pass resolutions for the voluntary winding up of the
company and the appointment of a liquidator were issued
one day short
of the' required period. In holding the defect to have been cured by
the unanimous agreement of the Corporators,
despite the fact that
three of the corporators did not vote in favour of the resolution,
Brightman J. expresses the view that the
true purport of the acts of
such corporators cannot be judged exclusively on what they did or did
not do on the date of the meeting.
He pointed out that by standing by
and not protesting when the resolution was being passed and
permitting all persons concerned
to act for years on the basis that
the resolution had been duly passed, it was idle for them to contend
that they did not assent
to the purported resolution.
Andrews v. Mitchell 1905, A.C. at p. 80 Lord Halsbury said:
"My Lords, in this case I feel, as I have no doubt all your
Lordships do, the extreme inconvenience of allowing these disputes
among friendly societies and their members to come into a Court of
Law. I feel the force of what Mr. Lawrence said, namely, that
not insist upon a too minute observance of the regularity of forms
among persons who naturally by their education or by
opportunities cannot be supposed to be very familiar with legal
procedure, and may accordingly make slips in what is mere
form without any interference with the substance of their decisions.
I should be anxious myself, as I have no doubt all
would, to give every effect to their decisions..."
with Mrs Makara that the principles enunciated in the company law
cases referred to above must apply to the present case.
school was started in 1992 it is very clear that
intention of the parties was that it should be a community school.
Their intention appears very clearly in Annexure "A1"
the opposing affidavit which is a form used in applications to
establish a new school in terms of Rules 5 and 7 of the Education
Rules, 1965. In that application the founders indicated that:
"I have to inform you that it is the desire of "Community"
"Board of Directors"........... to establish
a new primary
in the constitution the word "Community" was left out and
the Ministry of Education came to the conclusion that
the school was
a private school despite the obvious intention of the founders that
they intended that the school should be a community
school. On the
14th May, 1993 they amended the constitution so that it could reflect
their original intention. The decision to
amend the constitution was
reached by a unanimous assent.
that, as Lord Helsbury pointed out in Andrea's case - supra, we must
not insist upon a too minute observance of the regularity
among people who are not familiar with legal procedures. In his
opposing affidavit the first respondent avers that right
beginning their intention was that the school should be a community
school. This is confirmed by their
decision on the 14th May, 1993.
result the application is dismissed with costs,
Applicants - Mr. Malebanye
Respondents - Mrs Makara.
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