CIV/APN/124/99
IN THE HIGH COURT OF LESOTHO
In the matter between
ELLIOT MATUMANE 1st APPLICANT
MORENAMANG MOSOLA 2nd APPLICANT
POTLAKI MOHALE 3rd APPLICANT
'MAITATELENG LEKOENEHA 4th APPLICANT
'MATHABISO LIAU 5th APPLICANT
MOLEFI MOSESI 6th APPLICANT
JULY KHATAEO 7th APPLICANT
'MALERATO MOKONE 8th APPLICANT
NKHABU MAPUTSOE 9th APPLICANT
PUSO KOALI 10th APPLICANT
VS
MAKHALONG L.E.C. PRIMARY SCHOOL 1st RESPONDENT
UNITED L.E.C. PRIMARY SCHOOL 2nd RESPONDENT
M'ALETSITA NTHAKONG (DULY ASSISTED) 3rd RESPONDENT
MR LESIA 4th RESPONDENT
LESOTHO EVANGELICAL CHURCH 5th RESPONDENT
MINISTRY OF EDUCATION 6th RESPONDENT
THE ATTORNEY GENERAL 7th RESPONDENT
2
JUDGMENT
Delivered by the Honourable Mr. Justice M.L. Lehohla
On the 26th day of July, 1999
Following their urgent application moved ex parte before RAMODIBELI J on 24th March, 1999 the applicants obtained an Interim Order couched in the following terms
A rule nisi is hereby issued calling upon the Respondent(sic) to show cause (if any) on 19th April 1999 why the following order shall not be made absolute.
The 1st, 2nd, 3rd, 4th and 5th respondents are hereby ordered to admit to 1st and 2nd respondent's (sic) school the children mentioned in paragraph 10 of the 1st applicant's affidavit.
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The 1st and 2nd respondent's (sic) teachers and the 3rd and 4th respondents are hereby ordered to teach the said children according
to the syllabuses provided by the 6th respondent.
The 1st, 2nd, 3rd, 4th , 5th Respondents are hereby interdicted from harassing, discrimiding and victimising the children mention in
orderl(a) on the grounds of religion.
Ordering that prayer l(a) & (b) and (c) (sic) to operate with immediate effect.
Ordering the 1st, 2nd, 3rd, 4th, 5th respondent (sic) to pay the costs of this application.
The children referred to in order l(a) above and mentioned in paragraph 10 of the 1st applicant's affidavit appear in the following context:-
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"At the beginning of this year, around January, 1999 and February, 1999 the following Children were refused admission at the
1st respondent's school. These are Tlotliso, Tlotlisang and Ts'epang Matumane, Paballo Mosola, Nthabeleng Mohale,'Malefu Lekoeneha, Sekese and "Masehlare Liau, who are my children(sic) of the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, and 9th applicants informed me and I verily believed them that their children were also refused admission at the 2nd respondent's school. These are Lockup and Khotsofalang Mosesi, Poki and Nomvuyo Khataeo, Tumelo Koali, Li buseng and Maseabata Mokone, Thabo Pulane, Mphakoe and Tsosane Maputsoe respectively."
The matter was argued before me on 2nd June, 1999. Judgment was reserved pending a date to be notified by the Registrar of this court. Today i.e. 26.07.99 is such a day. The applicants associate themselves with the depositions of the first applicant appearing in his founding affidavit. The first applicant avers that he is the father of Tlotliso and Tlotlisang. He avers that he is a member of Jehova's Witnesses.
Going straight to the heart of the matter after elaborating on capacities of various respondents, he deposes to facts referred to earlier in paragraph 10 where he mentions by name various children who were refused admission at the 1st and 2nd respondents' schools.
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He goes further to indicate that his children were attending together with their brother Ts'epang Matumane last year, and that in that year Ts'epang was expelled from school and in consequence whereof the 1st applicant sought relief from this court in terms of CIV/APN/439/98. Ts'epang's siblings were however not expelled. But on 25th January, i.e. beginning of this year's term when the 1st applicant tried to register them for re-admission he was turned down and told by the 1st respondent's school that the Lesotho Evangelical Church through its Qacha's Nek Branch Committee had decided that all children whose parents are members of the Association of Jehova's Witnesses were not to be admitted at the school. See paragraph 11.
In paragraph 12 the deponent avers that Ts'epang was nonetheless re-admitted following the contempt proceedings instituted in CIV/APN/439/98. Thus he proceeded in his studies at that school on 15th February, 1999. He however is the only one who goes to school following the legal action taken against that school.
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In paragraph 13 the deponent avers that the actions of the 1st and 2nd respondents, those of the schools' committees and of the
proprietorship of these schools are contrary to the Constitution of the country and Education Laws in that the non-admissions of the children is based solely on discrimination on grounds of the parents' religious affiliation. The deponent stresses that the children who are thus being discriminated against do not even have any religion in the sense that one only becomes a member of the Association of Jehova's Witnesses after one has studied the Bible and has made a decision to be baptised. He thus points out that none of the children in question has been baptised. So it becomes clear that they are victimised because of their parents' religion. See paragraph 13.1.
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In paragraph 13.2. the 1st applicant avers that it is the education policy of this country that all schools which are subsidised by the government should be open to children of all denominations. The refusal to admit the children is also unreasonable and therefore
unlawful, so the averment goes. The deponent further avers that the public and all the applicants contribute to the maintenance of these schools as the categories of people mentioned, pay taxes through which government subsidises schools owned by the 5th respondent and other churches. This the government does by paying teachers and sometimes erecting buildings etc.
In paragraph 15 the 1st applicant pins his faith on the attitude of the Attorney General and refers to. "EM 2" a copy of a letter wherein the Law Office draws the attention of the Ministry of Education to section 13(2) of the Constitution that provides "that religious communities (churches) are entitled to establish and maintain places of
education and to manage them..........................these church schools are funded by the
government from the public funds...............church schools are entitled to provide
religious instructions for their persons, but they cannot use that to exclude persons of other religious communities from places of education especially when such education places are not wholly maintained by them. If they do that, that will be discriminatory and as such, against the Constitution section 13(3) read with section 18".
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In paragraph 16 the deponent prays and says:
"I therefore ask the court to compel the 1st, 2nd, 3rd, 4th, and 5th respondents to admit the children to school forthwith and to be interdicted from victimising and discriminating our children on the basis of religion and all other prayers outlined in the notice of motion."
In answer to these charges the 4th respondent avers at page 41 of the paginated record in paragraph 3 thereof that he admits refusing admission to the children of the applicants on the grounds that their parents are members of the Jehova's Witnesses sect. He goes further to qualify the above statement by saying that he, however, made it clear to each parent that membership of Jehova's Witnesses sect per se was not the cause for refusing them admission but rather their conduct of disrupting discipline in the school by participating only in those school activities of their choice and/or in the manner of their choice, always citing the doctrine of their said sect as the reason.
9
This deponent identifies himself with averments of Tselanyane Nthabane appearing on page 45 of the paginated record. He adopts the
submissions made therein particularly relating to the advice given that to enumerate the acts constituting unacceptable conduct of the said children would merely have the effect of inviting unnecessary disputes of fact which could best be dealt with in trial proceedings. I may just add that disputes of fact are referred to trial only if they are material and therefore go to the heart of the matter. In the instant case their importance has been dealt a fatal blow by the admission that the applicants' children were denied admission because of their parents' religious faith. Every consequent dispute that this court has brought its attention to bear on pales into insignificance and thus is of either nugatory or no value at all when placed side by side with this admission by the relevant respondents. Thus there would be no need for referral to trial proceedings even if the contemplated disputes of fact were involved in this proceeding.
10
It seems to me that the respondents who to a large measure associate themselves with the two deponents made mention of immediately above, are riding on two horses in their defence, namely that, first; the applicants' children were expelled from respondents' schools because of their parents' religious faith, and next that these children are disruptive of the necessary discipline that has to be maintained in the respondents' schools or anybody's schools for that matter.
While the first reason offered for the expulsion is wholly unreasonable the second one would in my view hold provided there was proof of such breach of discipline and steps which were taken against the culprits for their breach of the discipline at the respondents' schools. Failing such proof one is left with a nagging feeling that the expulsion of the children for their alleged breach of discipline is not the reason but merely an excuse. The reason being that their parents belong to the Association of Jehova's Witnesses as the principal Lesia made so bold as to assert prior to this rather lame qualification mentioned earlier.
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Section 18(3) of the Constitution of Lesotho in paying heed to its letter and spirit relating to freedom from discrimination provides that:
" In this section the expression 'discriminatory' means affording different treatment to different persons attributable wholly or mainly to their respective description by race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status whereby persons of one such description are subjected to disabilities or restrictions to
which other persons of another description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description."
While subsection (1) says that no law shall make any provision that is discriminatory subject to provisions of subsections (4) and (5), subsection 4 specifically excludes application of subsection (1) to any law to the extent that that law makes provision-
"a-
b-
c -
d - for the appropriation of public revenues or other public funds"
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Section 13(3) of this Constitution says:
"Except with his own consent (or, if he is a minor, the consent of his guardian), no person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if that instruction,
ceremony or observance relates to a religion other than his own."
It is common cause that the religious faith adhered to or practised by Lesotho Evangelical Church is different from that practised by Jehova's Witnesses. To the extent that the principals and authorities of the 1st and 2nd respondents sought to ram their religious
practices down the throats of applicants' children they did so in breach of the clear and telling letter and spirit of provisions of the Constitution in the instant section.
13
Mr Sello for the respondents sought to persuade this court to have regard to the extracts of founding, answering and replying affidavits
designated as such in handwriting and abstracted from CIV/APN/219/98. But this effort seems to run counter to the clear statement made by Herbastein & Van Winsen in The Civil Practice of the Superior Courts of South Africa page 81 - under the heading Facts of Another case to prove the other -that:-
".......a party is entitled to make any legal contention which is open to him on the facts as they appear on the affidavits."
Yet in Simmons NO vs Gilbert Hamer & Co Ltd 1963 (1) SA 897 cited by the above authors it is concluded that "thus a party cannot argue on facts not entailed in the affidavits before court."
Needless to say these extracts referred to above in the instant case were supplied in the course of the submissions and were never filed as responses to the application forming the core of this proceeding. In James Brow & Hamer(Pty) Ltd (previously named Gilbert Hamer & Co Ltd) vs Simmons NO 1963 (4) SA 656 (A) at 660 D-F Ogilvier Thompson JA in reversing the earlier decision reflected in the previous paragraph held;
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"that where an affidavit tendered in motion proceedings is both late and out of its ordinary sequence, the party tendering it is seeking, not a right, but an indulgence from the court: he must both advance his explanation of why the affidavit is out of time and satisfy the court that although the affidavit is late, it should, having regard to all the circumstances of the case, nevertheless be received."
In the circumstances of the instant matter there was no way short of postponing this case that applicants could respond issuably to matters raised in the affidavits extracted from another case. On this ground alone the respondents' case appears to be flawed. This court has had regard to Simonlanga and others vs Masinga & 4 others 1976 (2) SA 732
The facts of that case were very similar to those in the instant one in that they related to a school referred to as Bantu school from which pupils were expelled because they refused to participate in prayers, singing of hymns and other religious activities on the ground that such activities were contrary to the pupils' religious beliefs as Jehova's Witnesses. Respondents conceded that the expulsion was irregular.
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An interdict was sought to restrain respondents from suspending the pupils' attendance at school because of their refusal to participate
in the religious activities. Although the right of religious freedom was reserved for whites no such right was reserved in any Act applicable to Bantu; yet the court rightly pronounced that absence of such reservation for Bantus should not be construed to mean that Bantus have no such right because freedom of religion, conscience and worship is enshrined in the common law.
In the instant matter the appellants' right which would, in the absence of any law to the contrary reside in the common law is well spelt out in the Constitution. The Education Act 1995 in section 15 provides that all schools must provide education to the children in an atmosphere of freedom and the best interest of the child being of paramount consideration. Simonlanga above says:
"these freedoms and rights are not absolute and they are diminished or curtailed by similar rights and freedoms of other citizens and others."
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This is consistent with section 4(1) of our Constitution providing that:
"Whereas every person in Lesotho is entitled...........to fundamental human rights and freedoms..........subject to such limitations............as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest."
The actions of the 1st and 2nd respondents in my view were unlawful and are therefore declared unconstitutional.
In my judgment the rule nisi ought to be confirmed with costs against respondents 1 through 5. And it is so ordered.
M. L. LEHOHLA
JUDGE OF THE HIGH COURT
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Delivered at Maseru on the 26th day of July 1999
For Applicants Ms Tau-Thabane
For Respondents 1 to 5 Mr Sello
