CIV/APN/194/85 IN THE HIGH COURT OF LESOTHO

In the Application of :

NAPO GABRIEL MOHALE Applicant

and

NATIONAL UNIVERSITY OF LESOTHO Respondent

JUDGMENT

Delivered by the Hon, Mr. Justice B.K. Molai on the
30th day of September_T1983.

On 2nd September, 1983, applicant filed with this Court
a notice of motion in which he moved the Court for an order, against
the Respondent,
couched in the following terms :

"1. Declaring that Napo Gabriel Mohale, the
applicant herein, has satisfied all the requirements for the degree
of B.A. (Law)
of the National University of Lesotho.

2. Directing the National University of
Lesotho, the
Respondent herein, to
confer upon the Applicant, forthwith
the
Degree of B.A. Law.

3, Directing the Respondent to pay the
costs of this
application.

4. Dispensing with the periods of
notice required by
the Rules of
Court on grounds of the urgency of
this
application."

Briefly the founding affidavit disclosed that in 1978/79
academic year, the applicant had enrolled with the Respondent
University
to study for a two year University Diploma in Law which he
passed with credit

2/ at the close

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at the close of the 1979/80 academic year.

At the beginning of the academic year 1981/82, applicant
was admitted and enrolled for a B.A. (Law) programme of study at the
Respondent
University. The programme of study for the B.A. (Law) of
the Respondent University normally took four years to complete. The
applicant,
however, applied for and was granted exemption from the
common First Year. In addition, he obtained exemption in four of the
courses
that he had already passed during the time he was studying
for the Diploma in Law, They were Criminal Law (L202-8), Family Law
(L301-8),
the Law of Property (L401-8) and the Law of Evidence
(L404-8) which collectively carried a total of 32 units. In
recognition of
the exemptions he had obtained in those four courses,
the applicant was in fact registered as a third year student as
reflected by
the University's official acknowledgment of his
registration Annexure 'A'

For the academic year 1981/82, the applicant studied and
passed the Law of Contract (L201-8), Constitutional Law (L203-8),
Administrative
Law (L204-4), 8 optional units of a non-law course and
4 optional units of a non-law course.

Assuming the correctness of applicant's averment, it may
be observed at this juncture that it would appear that the total
number of
units he obtained at the end of 1981/82 academic year was,
therefore, 32. However,according to annexure 'A', applicant was
supposed
to have registered for 36 units. He was, therefore, short of
4 units.

Applicant further averred that at the beginning of the
academic year 1982/83, he was registered as a fourth year student as
reflected
by the University's official acknowledgement of his
registration, annexure 'B', of the founding affidavit. During that
year he

3/ registered for ....

-3-

registered for study the following courses :

Delict (L3O2-8), Mercantile Law I (L303-4) Conflicts of
Laws (402-4) Civil Procedure (L403-8), Criminal Procedure (L304-8)
Law of
Business Associations

(L405-4) and 8 optional units of a non-law

course.

That would give applicant a total of 44 units and not 39
units as reflected in the official acknowle­dgement of his
registration,
Annexure 'B', Moreover,

a total of 44 units seems to be conflicting with the
provisions of regulation 10.422 of the 1981/82 and the 1982/83
calendars. That
regulation reads :

"Normally, a full-time semester load shall be 18
units and the number of units taken in any one year by a full-time
student shall be not less than 33 and not more than 39. Any
deviation from this must be approved by the Dean of the faculty and
the Head of the
Department concerned." (my underlining)

I have underlined the word "shall" to indicate
that, in my view, the use of that term makes the requirement of
between 33
and 39 units a year peremptory unless, of course, a
diviation is authorised by the Dean of the Faculty and the Head of
Department.
In the present case, there is no averment that such a
diviation had been duly authorised.

Be that as it may, the applicant further deposed that
during his studies for the 1982/83 academic year, he was advised that
he had
never been exempted from units but from courses,
namely,Criminal law, Family Law, the Law of Property and the Law of
Evidence. Consequently
he would have to study for 32 units of courses
of his choice in other disciplines. Notwithstanding the fact that he
was studying
the remaining courses for the B.A. (Law) programme, the
Head of the Faculty of Law, therefore, regarded him as being in the
3rd year
of

4/study ....

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study for the B.A. (Law) Programme.

The applicant did not agree with this contention as, in
his submission, he had satisfied all the require­ments for the
B.A. (Law)
programme of the Respondent University and entitled,
therefore, to the degree. He, therefore, prayed for an order of this
court
as afore­mentioned.

On 9th September, 1983, the respondent intimated the
intention to oppose this application. The opposing affidavit was
filed on 19th
September, 1983 by the Deputy Dean of the Faculty of
Law, one Kelebone Maope who conceded that during the 1978/79 and the
1979/80
academic years applicant had enrolled with the Respondent
University for a Diploma in Law which he passed with credit. For his
Diploma
in Law, applicant had studied, inter alia, Criminal Law,
Family Law, The Law of Property and the Law of Evidence which courses
admittedly
carried collectively a total of 32 units.

In 1981/82, applicant enrolled with the Respondent
University for the B.A. (Law) programme. He was exempted from the
common First
Year of study and in addition from four of the law
courses he had done for his Diploma in Law, namely, Criminal Law,
Family Law,
the Law of Property and the Law of Evidence. The mistake
that applicant was making was that he was entitled to be exempted to
more
than one year of study and the course units m respect of the
courses in which in he had obtained exemption. No student can be
exempted
from more than one year of study. The exemption from
courses did not mean that a student was exempted from the course
units. He
still had to substitute the units of the courses from which
he had been exempted by units from other courses of his choice in
some
other disciplines.

In 1981/82 academic year, applicant was enrolled as a
2nd year and not 3rd year student. In

5/fact an attempt

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fact an attempt was made to draw up a three years
programme of study for the applicant. The programme was, however, not
completed.

As regards annexures 'A' and 'B' to the founding
affidavit, which annexures show that applicant had been registered as
third year
and fourth year student for the academic years 1981/82 and
1982/83 respec­tively, the deponent averred that it was the
mistake
of partly the computer and partly the applicant who had fed
the computer with wrong information as reflected by the non-education
students registration forms annexures "G" and "H".

It was during the second year of his study that
applicant claimed to be in the fourth and final year of his studies.
A letter dated
25th November, 1983 (annexure E) was written to
applicant by the Faculty Tutor, a certain A.N. Hercy who advised him
that he was
in the third year and not the fourth year of his B.A.
(Law) of study programme.

Applicant had omitted to state that in 1981/82 he also
wrote but failed Mercantile Law I (L.303-8) which he had to repeat in
the following
academic year. Again in 1982/83 academic year,
applicant wrote but failed Mercantile Law (303-8) and Law of Business
Associations
(L405-4). He had been allowed to supplement the two
subjects and the scripts were still with the external examiners.
Until the gradings
of the external examiners had been released, it
would not be possible to know conclusively whether or not the
applicant had passed
the two courses in which he had written the
supplementary examinations. Even if the rest of applicant's
averments were accepted,
therefore, the degree could not be conferred
on him before the final grading of the two subjects in which he had
written supplementary
examinations had been released by the external
examiners.

6/ For these reasons ....

-6-

For these reasons, the application was premature and
ought to be dismissed with costs as between attorney and client.

Applicant filed a replying affidavit in which he adhered
to the contents of his founding affidavit. He, however, conceded that
he
had had to write supple­mentary examination in Mercantile Law
(L3O3-8) and the Law of Business Association (L405-4). The Senate
Executive of the Respondent University had already considered his
supplementary examinations and its decision annexure "J"
was that he had passed the two courses and was therefore qualified to
proceed to the next year of study. The Senate could not have
taken
the decision if his results from the External Examiners were still
awaited. Applicant, therefore, prayed for an order as aforesaid.

It is significant that applicant joined the Respondent
University to read for a B.A. (Law) degree in 1981/82 academic year.
His programme
of study for the degree, therefore, falls to be
governed by the regulations obtainable in the 1981/82 calendar of the
Respondent
University. In terms of 0.2 of the Preamble to the
Academic Regulations in the 1981/82 calendar, it would appear
that no subsequent changes to the disadvantage of applicant in these
regulations could affect the applicant's programme
of study. 0.2 of
the Preamble reads .

"0.2. No student who has started a

degree, certificate or diploma course following one set
of regulations shall be set at a disadvantage by a regulation
subsequently
framed."

It is common cause that when he joined the Respondent
University for the B.A. (Law) programme of

7/study in

-7-

study in 1981/82 academic year,the applicant was
exempted from four of the courses that he had already passed with
credit for his
Diploma in law. The question is whether or not he was
necessarily exempted from the corresponding units of those courses.
In terms
of regulation 10.42 in the 1981/82 calendar of the
Respondent University, it would appear that courses are built up of
units. That
being so, it would appear that one cannot be exempted
from courses without being necessarily exempted from their
corresponding units.
Indeed, the last paragraph of Regulation 16.21
in the 1981/82 calendar specifically provides :

" - the holder of a Diploma in law shall be
exempted from the common First Year. Such a person may also be
exempted from a maximum of 36 units of law courses where
he has obtained at least a pass with credit in each course."

(my underlining)

From the words I have underlined, the exemption is
clearly from the units.

One other reason advanced in support of the contention
that applicant was exempted from courses but not from units was that
the courses
from which he had been exempted were taken at a Diploma
level which is of a lower standard than that of a degree. There can
be no
doubt that a Diploma in law is a lower standard of
qualification than a Degree, In its wisdom, the Senate of the
Respondent University
has, however, deemed fit to exempt, as it is
perfectly empowered to do, degree students from course units taken at
a diploma level.
It cannot be seriously argued that in terms of the
University Act and Statutes, the Senate is the

8/ competent body

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competent body to do this and it will be preposterous,
therefore, to challenge the legality of its decision in this regard.

It seems to, me, therefore, that the question whether or
not by exempting him from the courses he had passed with credit for
his Diploma,
applicant was necessarily exempted from their
corresponding units must be answered in the affirmative.

Reference was made by the Respondent to Regulation
16.215 (d) at page 111 in the 1982/83 calendar and a suggestion made
that applicant
should have read this regulation in conduction with
pages 104 and 105 of that calendar. I am not sure if I understand
what the Respondent
had in mind about pages 104 and 105 of the
1982/83 calendar. I can only assume that he was referring to
regulation 16.105 at page
104 and regulation I6.11(b) (iii) at page
105. Assuming the correctness of my assumption, it must be observed
that regulations 16.105
and 16.11 (b) (1i1) did not exist in the
1981/82 calendar in 1981/82 academic year when applicant first
enrolled with Respondent
University for his B.A. (Law) programme of
study. They are new amendments clearly inserted by the Senate under
the powers vested
in that body by the provisions of 0.1 of the
Preamble to the Academic Regulations of the Respondent University.
If the interpretation
of these new amendments is such that it puts
the applicant at a disadvantage in his studies towards the attainment
of a degree he
had already started it seems to me that they cannot be
applicable to his case in terms of regulation 0.2 under the Preamble
to the
Academic Regulations 1981/82 also embodied in the 1982/83
Academic Regulations.

Having decided as a fact that applicant was exempted
from course units in four of the courses he had passed with credit
for his Diploma
studies, it becomes

9/apposite to

-9-

apposite to determine the question whether or not that
had the effect of exempting him from the 2nd year of B.A. (Law)
programme of
study. Respondent's contention is that this cannot be
done. I am unable to reconcile this contention with the provisions
of Regulations
13.73 et seq. In particular Regulation 13.75
embodied in the 1981/82 calendar of the Respondent University reads :

"A certificate or Diploma holder may be exempted
from the common first year in toto or from the common First Year
and the Second Year of a degree programme in toto but not
from any part of either,"

(my underlinings)

In my view, the regulation makes sense for as any one
who has ever applied for an exemption at a Univesity Institution is
aware, the
effect of exemption is to shorten the number of years
which one has to take to complete whatever qualification one is
studying for.
I should know. Again if it were suggested that under
the 1982/83 academic regulation, the position has been changed that
will clearly
place the applicant at a disadvantage and in terms of
0.2 of the Preamble to the 1981/82 Academic Regulations under which
the applicant
had enrolled with the Respondent University for his
B.A. (Law) programme of study cannot be applied to applicant's case.

That when, in 1981/82 academic year, he joined the
Respondent University for the B.A. (Law) programme of study applicant
was enrolled
as a third year student seems to be supported not only
by the Respondent's own Academic Regulations but also annexures 'A'
'B' 'G'
and 'I'. The argument that the annexures are incorrect and
both the computer and the applicant are to blame for the wrong
information
in these documents is a suggestion that Respondent
University does not ensure that its records are correctly

10/ maintained

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maintained. That would be a poor reflection of the
Respondent's own efficiency on this point and I consider it highly
improbable
in an Institution of a Higher learning such as the
University,

It is common cause that of the courses applicant sat for
examination at the close of the academic year 1982/83,two had to be
supplemented.
Following the supplementary examination, the applicant
was informed per annexure 'J' that at its meeting held on 25th
August, 1983,
the Senate had decided that he should "proceed".
Applicant interpreted that as meaning that he had definitely passed
the
two courses m which he had sat for the supplementary examination.
The Respondent denied and argued that the normal procedure followed
at the Respondent University was that after examinations have been
written, scripts arc marked internally and then sent to external
examiners for moderation. The final end official results arc
released after the external examiners have completed their work. In
the supplementary examinations, the students are, however, informed
to "proceed" to the next year of study if according
to the
internal marking of their scripts they have passed. The reason
behind this is that sometimes the results of the external
examiners
delay and are released after the academic year had started. Annexure
'J' was, therefore, released on the basis of internal
marking of
applicant's supplementary scripts and does not represent the final
and official results of his supplementary examination.
It was, so to
speak, interim results on the basis of which no degree of any class
could be conferred on the applicant.

I have had the opportunity to look at annexure 'J' and
noticed that all what is written opposite applicant's name is the
word "Proceed".

11/ Whatever that

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Whatever that means,there is no indication of any
symbols in whatever courses applicant may have sat for the
supplementary examinations.
It may well be true, therefore, that
annexurc 'J' is an interim and not the final results which are still
awaited from the external examiners. That being the case, I
do not, for the time being, sec in what grade the degree can be
conferred on the applicant.

After all that has been said, it must be pointed out
that the National University of Lesotho has been established by Act
No, 10 of
1976 enacted by Parliament. In terms of S.5 (e) of that
Act, one of the functions of the University is, subject to the
Statutes and
Academic Regulations,to award and confer degrees.
Whether or not the University properly carries out this all important
function
is, truly speaking, a matter within its domestic government.
For anybody aggrieved by the manner in which the University takes
decisions
to confer degrees to its students there should be domestic
remedies which, in my view, must be exhausted before the courts of
law
can interfere.

On the papers before me the decision that applicant has
not satisfied all the requirements for the award and conferment of a
B.A.
(Law) Degree was made by the Law Faculty of the Respondent
University. If the applicant felt unhappy with that decision, I can
see
nothing in the Regulations to prevent him from approaching in
that regard, the Senate and the Council, which bodies are
respectively
the Principal Academic Authority and the Supreme
Governing Authority of the University. This he has not done. He has
instead filed
the present application with the Courts of Law. He has,
so to speak, taken a short circuit which, in my opinion, cannot be
allowed.
The available domestic

12/ remedies must

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remedies must first be exhausted lest the courts of law
are accused of usurping the powers of the University.

I come to the conclusion that the application is
ill-conceived and accordingly dismiss it with costs.

B.K. MOLAI, JUDGE

30th September, 1983.

For the Applicant Mr. Sello
For the Respondent
Mr. Maqutu.