IN THE COURT OF APPEAL OF LESOTHO
C OF A (CIV) 13 OF 2011
In the matter between:
THE DIRECTOR GENERAL – N.H.T.C. 1ST APPELLANT
THE DIRECTOR – ACADEMIC – N.H.T.C. 2ND APPELLANT
NATIONAL HEALTH TRAINING COLLEGE 3RD APPELLANT
MINISTRY OF HEALTH & SOCIAL
WELFARE 4TH APPELLANT
THE ATTORNEY GENERAL 5TH APPELLANT
PALESA MOHOLISA RESPONDENT
HEARD : 11 OCTOBER 2011
DELIVERED: 21 OCTOBER 2011
CORAM: MELUNSKY JA
Respondent, a first year student at the NHTC, failed Chemistry despite having obtained over 50% in the continuous assessment component which made up only 40% of the final result, the final examination making up the balance of 60%. Due to the appellants’ incorrect assumption that the respondent was in arrears with her tuition fees, she was not furnished with her results (save in respect of three subjects in which she was entitled to write supplementary examinations) on 30 June 2010. Her full results were eventually given to her on or about 30 August 2010. She contended that she was thus deprived of the right to apply for a remark in chemistry; that she had been treated in an unfair and wrongful manner by the NHTC; that her results were fabricated as part of a ploy to expel her from the College.
Mofolo AJ in the High Court purported to confirm the respondent’s move to the second year and declared that the allegation that she had failed chemistry was void ab origine and of no legal effect.
On appeal, held, that the order of the High Court was incorrect and beyond the competence of the court and that it should therefore be set aside.
Held, further, in view of the respondent being erroneously placed on the list which reflected that her fees were in arrears, that there should be no order as to costs in either Court.
 The respondent, the applicant in the High Court, was a first year student at the National Health Training College (‘the NHTC”) during the 2009-2010 academic year which, we were informed from the Bar, is from August to May. Towards the end of the academic year students at the NHTC, including the respondent, wrote their end of year examinations in their respective courses. On or about 30 June 2010 the results should have been supplied to those students who were up to date with their tuition fees. The examination results of students whose fees were in arrears were withheld by the NHTC but these students were furnished with the results of the courses in which they qualified to write supplementary examinations. Despite the fact that the respondent’s tuition fees were not in arrears, her results were not supplied but she was informed of three courses in which she qualified to write supplementary examinations. She wrote these and passed all of them. At the commencement of the following academic year (2010-2011) the respondent had not been informed of the results of the previous year-end examinations but, according to her affidavit, she appears to have assumed that she had passed her first year. She therefore returned to the College where she attended classes for some weeks although, according to the appellants, she had not registered for the new academic year as a second year student. What is of the essence of the appeal, however, is the fact that within a few weeks into her second year, and possibly as early as 4 August 2010, the respondent was informed by the second appellant, the NHTC’s director in the academic office, that she had failed the chemistry course (BAS 100) in her first year.
 The results of the respondent’s first year examinations should have been furnished to her on or about 30 June 2010. In a letter written by the fourth appellant’s chief legal officer to the respondent’s legal representative on 30 August 2010 he acknowledged that the NHTC had
“….withheld [the respondent’s] results mistakenly by placing her name to the names of students who owed the institution….”
He added, however, that the mistake
“….does not erase the fact that she had failed chemistry and has to repeat it.”
 The respondent’s results were given to her on or about 30 August 2010. She claimed that, in terms of the NHTC Academic and Examination Regulations (“the Regulations”) it was then too late to apply for a remark of her chemistry paper. This is a convenient stage to refer to certain of the regulations that are relevant to the outcome of the appeal. These are the following:
“Examinations have continuous assessment component and final examination which shall be weighted as follows:
Final Examination 60%
Continuous assessment 40%”.
“A student shall be deemed to have failed a course if he/she obtains a score of 39% and below in any course”.
Must Supplement (Regulation 7)
“A supplementary examination shall be conducted for students who have obtained a score of 40-49% in a course.”
Regulation 8.1 Payment of Fees
“No student shall sit for an examination before paying all the fees, if this happens, examination results for such a student will not be released until all the fees have been paid.”
Regulation 9.0 Re-Marking of Examination Scripts
“9.1 It may be done on application by the concerned student within a period of two weeks (14 days) following publication of the result.”
 The NHTC is an educational college and, as is the case in all such institutions, its regulations are binding on all students, and there is no suggestion by the respondent that this is not of application in this matter. The first point raised by the respondent was that as the results were published on 30 June 2010 and she became aware of her results only in August, she was unable to apply for a remark within 14 days of the publication. Although the results were published generally at the end of June, the respondent’s own results, dated 30 August 2010 were supplied to her at that time. In terms of Regulation 9.1 she was not time-barred and, according to the second appellant, the respondent was informed that she could indeed apply for a remark. In this regard it may also be noted that the appellants’ contention that the respondent should have exhausted “all available local remedies” (by applying for a remark) before applying to court for relief, is without substance. The Regulations do not, in my view, give rise to an implication that recourse to a court should be barred until a student has exhausted whatever other remedies may be open to her.
 With that somewhat lengthy background, we are now in a position to consider the relief sought by the respondent and the judgment of Mofolo AJ in the High Court. On 13 September 2010 the respondent was granted the following interim relief by Monapathi J in the High Court:
“1. That ordinary modes and periods of service prescribed by the Rules of this Honourable Court be dispensed with on grounds of urgency.
2. That a rule nisi be issued returnable on the 13th day of September 2010 calling upon the Respondents to come and show cause, if any, why:-
(a) That the decision made by 1st to 2nd respondent declaring applicant as having failed chemistry (BAS 100) in the academic year 2009/2010 at 3rd respondent be declared null and void ab origine.
(b) That 3rd respondent be ordered to dispatch the final examination scripts of applicant to this honourable court for perusal and appropriate action.
(c) That the applicant be granted further and/or alternative relief as Honourable Court may deem fit.
(d) Costs of the suit in the event of opposition to this matter.
3. That prayer 1 operates immediately as an interim court order.”
 On the return date Mofolo AJ in effect confirmed para 2 (a) of the rule nisi but he also said that the application is granted “to the effect that the [respondent’s] move to the second year is confirmed.” This Court is now concerned with an appeal against these orders. The respondent’s results for chemistry – continuous assessment and examination – resulted to no more than 33%, clearly a failing percentage. The respondent contended, however, that she had been treated unfairly, that her results were fabricated and that there was a “cynical ploy”, presumably by NHTC officials, to have her expelled from the College. She appeared to rely on the fact that her course instructor (tutor) used only two test results in which the respondent obtained 44% and 53% in determining the continuous assessment results. According to the respondent the tutor should also have had regard to the results of an assignment for which the respondent obtained 67%. There is, however, nothing to prove that the tutor’s decision to exclude the assignment result was taken either capriciously or for some ulterior purpose. In fact had she taken the tests and the assignment results into account, the respondent’s term results would have totaled 54% but only 40% of this would have had application in the assessment of her final mark. If only the two tests are to be taken into account, the average for the term mark would have been below 50%.
 Where the learned Judge a quo erred, however, was to ignore the fact that the continuous assessment component consisted of only 40% towards the final results. His apparent failure to take into consideration the final examination component of 60% is a fatal flaw in his judgment. I use the phrase “apparent failure” advisedly because nowhere does he refer to the final examination component in arriving at his conclusion. On the contrary he states that with an average score of 54% for “both assignments and tests together [respondent] appears to have passed.” This misdirection on his part explains why he arrived at the order of the Court a quo.
 Secondly, the learned Judge was clearly wrong in holding that only the chemistry result was withheld from the respondent. It is clear that all the results were withheld, save for those in which she qualified to write supplementary examinations. Mofolo AJ went on to say the following:
“The explanation that chemistry results were withheld for some reason is suspect, it cannot be true. What’s true is that the result was withheld for some ulterior purpose …In the result, there is no sound reason why the [respondent’s] chemistry result was withheld save to hurt her feelings and cause her unnecessary prejudice.”
The failure to appreciate the explanation given by the appellants resulted in the learned Judge holding, in effect, that the College’s officials were mala fide and that they had acted with the deliberate intention of hurting the respondent’s feelings – conclusions that were unjustified. There was no reason for any employee or official to have intentionally put forward a false explanation for withholding the respondent’s results and none was advanced by the respondent or, indeed, by the Court a quo. The learned Judge erred, too, in holding that there were “no hard and fast rules to withhold results”. But it is clear from regulation 8.1.1 that examination results “will not be released” until all fees have been paid. That is the reason why the respondent’s results were withheld, albeit mistakenly. The fact that the appellants were mistaken in placing the respondent’s name on the list of students whose fees were unpaid is no justification for rejecting their evidence. Certainly it cannot be said that their reason is “suspect” and “cannot be true.” In my view it is far more probable that the appellants made a bona fide mistake in assuming that the respondent’s fees had not been paid.
 What is more the Court a quo did not appreciate that the respondent, in being given her results on or about 30 August 2010, was well within time to apply for a remark of her chemistry examination. The learned Judge simply accepted the respondent’s explanation that it was impossible to apply for a remark. He went on to say that as a result the respondent was deprived of the right to “procedural fair administrative action” and that the third respondent and its agents had violated the respondent’s right to a remark.
 Another matter raised by the Court a quo was the question of estoppel by representation. It does not appear, however, whether the learned Judge held that the appellants were estopped, in what respects they were estopped and in what manner such alleged estoppels had an effect on the outcome of the case. This, however, is a case where the Regulations determine how examination results and the passing and failure of students are regulated. Under the guise of estoppel, a Court cannot compel the appellants to do something which the Regulations do not allow them to do nor can the appellants’ negligence be a substitute for compliance with the Regulations. These principles were determined as long ago as 1916 (see Hoisain v Town Clerk, Wynberg 1916 AD 236 at 240). It may also be noted that the learned Judge a quo seemed to place some reliance on Royal British Bank v Turquand (6E and B327). But, as was pointed out in Hoisain’s case, the present is a very different matter and one to which the principle of the decision in Turquand cannot apply.
 The facts of this matter can be summed up as follows:
(i) The appellants should have notified the respondent of her results by the end of June 2010. In fact her results were only supplied to her two months later.
(ii) It is fair to conclude that the appellants were clearly negligent in causing the respondent’s mark to be placed on the list of students whose tuition fees were in arrear. There is, however, no justification for Mofolo AJ’s finding that the appellants’ explanation was false and that they acted for some ulterior purpose.
(iii) When the respondent was informed of her results she was in time to apply for a remark of the chemistry examination but she did not do so.
(iv) There is no doubt that, in the absence of a remark, the chemistry result of 33%, incorporating both the continuous assessment component and the final examination, had to stand. The respondent failed the chemistry course and had to repeat that subject.
(v) The learned Judge a quo misdirected himself in holding that only the chemistry result was withheld, in deciding that the respondent was out of time to apply for a remark and in finding that she was treated unfairly and that the third respondent had acted irrationally.
(vi) Mofolo AJ was not competent to “confirm” the respondent’s move to the second year or to declare that the decision that she had failed chemistry was void and of no legal force or effect.
(vii) In particular the learned Judge was incorrect in taking into account only the continuous assessment component while ignoring the final examination. Moreover he paid no regard to the actual result of 33% she obtained in the chemistry course.
 Finally, there was no prayer in the notice of motion that the respondent should be promoted to her second year of study. The lis between the parties was defined in the notice of motion and the rule nisi and the parties did not agree to the Court granting additional relief to the respondent. For the reasons given in this judgment, the rule should have been discharged.
 It does, however, appear to me that this litigation arose out of the first four appellants’ failure to supply the respondent’s results to her on or about 30 June 2010 as they should have done. This, in turn, was due to the negligence of officers or employees of the said appellants. It resulted in the respondent becoming suspicious of their motives and in the litigation that followed. Had the respondent’s name been placed on the list of students whose fees were up to date, it is quite likely that she would not have resorted to legal steps to obtain relief. For these reasons it would be fair and reasonable that no order should be made as to the costs in both Courts.
 The following order is made:
1. The appeal is allowed, with no order as to costs.
2. The order of the Court a quo is set aside and is replaced with the following:
“The rule nisi is discharged with no order as to costs”.
JUSTICE OF APPEAL
For the Appellant : Adv L. Mokobocho
For the Respondent: Adv K.J. Nthontho
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