CIV/APN/120/84

IN THE HIGH COURT OF LESOTHO
In the
Application of :

TEBOHO CHALANE Applicant

V

LESOTHO AGRICULTURAL COLLEGE 1st
Respondent
SOLICITOR GENERAL 2nd Respondent

JUDGMENT

Delivered by the Hon. Acting Judge Mr. Justice J L.
Kheola on the 8th day of June, 1984.

On the 29th May, 1984 Mr. Kambule for the Applicant
appeared before me in Chambers and moved an Ex parte application for
an order
in the following terms:

1. That a Rule Nisi be issued returnable on a date
to
be determined by the above Honourable Court
calling upon the
Respondents to show cause, if
any, why

(a) 1st Respondent shall not be ordered to reinstate
applicant to the Agricultural College forthwith pending any
disciplinary action
against him.

2. The 1st Respondent allow applicant to attend
classes
and practicals and sit for examinations
beginning from the 26th
June, 1984 pending
disciplinary action that may be taken
against
him by the College.

/3.

-2-

3. 
   That Respondents pay costs of this application
   in
   the event of opposition.

   
   

4. 
   That prayer 1 and 2 above operate with
   immediate
   effect.

   
   

5. 
   That the Rules pertaining to service of notice
   be
   dispensed with.

   
   

6. Further and/or alternative relief.

Having heard Mr. Kambule I granted the order sought by
the applicant but deleted prayer 4. The Rule Nisi was returnable on
the 11th
June, 1984. In terms of Rule 8(18) of the High Court Rules
1980 the Respondents anticipated the return day and the Applicant's
attorneys
were properly served with a notice that the matter would be
heard on the 8th day of June, 1984. When this matter was called this
morning there was no appearance for the Applicant. I allowed Mr.
Tampi for the Respondents to address me.

In his founding affidavit the Applicant deposed that he
is a final year student at the Lesotho Agricultural College where Mr.
Khuele
is the principal. He says that on the 27th April, 1984, he
received a letter from the principal of the college, purporting
to expel him from the College on an allegation of misconduct. The
letter reads as follows:

Mr. Teboho S. Chalane, P.O. Box MS 58, Maseru - 100.
LESOTHO.

Dear
Mr. Chalane,

/re:

-3-

re: DISCIPLINARY ACTION.

Following the numerous occasions on which a concern has
been raised in regard to your unwelcoming behaviour and conduct, and
with
particular reference to your suspension from the College for
refusing to take instructions from College authority and your recent
assault of the Boarding-Master and the College night-watch-men, I
regret to inform you that the College can no longer tolerate your
presence here. With this note therefore you are to be advised that
this College will remain out-of-bounds for you; and your presence
in
this campus will be regarded as tresspassing on Government property.

Yours sincerely,

M.E. KHUELE ACTING PRINCIPAL

The Applicant further deposed that after receiving the
above letter he requested the acting principal to put the matter
before the
Disciplinary Committee but instead the acting principal
asked him to put his plea in writing and present it to him. This he
did
and his letter dated the 2nd May, 1984 reads as follows:

The Principal, Lesotho Agric. College, P/B A4, MASERU
- 100.

Dear Sir,

/In

-4-

In response to your letter dated 25-4-84, "re:
Disciplinary action" as taken against me, I regret to inform you
that the
decision reached does not satisfy me.

Although it may be true that I have assaulted the
boarding-master and the night-watch-men as said in the letter, I
don't accept the
expulsion because I do not think I have tresspassed
any regulation or law. Again I would appeal to the College to listen
for the
first time my defence against that report which has been made
by that party concerned.

I am very sorry to be informed about my expulsion from
the campus whereas I have not been informed of the disciplinary
Committee and
the decision was made during my absence from College.

I appeal to the College to reconsider the case again in
the formal and fair way while I will be continuing my studies.

I promise to explain infront of a disciplinary committee
what really took place. Again I cannot find a good or sound reason
to reach
the conclusion without my consultation but to err is human
that's why I beg the College to reconsider the case.

Yours humble student,

T.S. CHALANE.

In his reply to the above letter the acting principal

/reminded

-5-

reminded the Applicant that in their conversation on the
1st May, 1984 he had advised the Applicant to put down on paper his
plea
and also the circumstances and cause why he assaulted the
Boarding-Master and the College night-watch-men. He again advised
him
to do so.

The Applicant says that on receipt of this letter he
decided to seek legal advice. He instructed Messrs. T.M. Mda &
Co. A long
correspondence between the acting principal and
Applicant's attorneys followed and culminated in the institution of
this application.

The Applicant contends that his purported expulsion has
been unprocedural and highly unfair as he was never called upon by
the disciplinary
committee to state his case. The decision to expel
him has been taken arbitrarily by the Principal without consulting
the disciplinary
committe On the 14th May, 1984, the Principal
caused him to be arrested on the charge of tresspassing and he was
locked in the Maseru
Charge Office and released on the 16th May, 1984
when he was taken before a Magistrate on a charge of assault and his
case was remanded
to the 15th June, 1984.

In his opposing affidavit Matsau Elton Khuele; acting
Principal of the 1st Respondent deposed that on the 5th April, 1984
the Applicant
was found outside the women's hostel at about 10.00
p.m. He was confronted by the night-watch-man, Tsoeunyane Lerasa,
who told him
to leave that area. Lerasa sought the assistance of his
colleague Liatla and they together tried to persuade the

/Applicant

-6-

Applicant to leave the place as it was against the
College Regulations (No.13) to be found in the women's hostel. The
Applicant became
rude and aggressive and started hurling stones at
the watch-men as a result of which Lerasa sustained a fractured arm.
The Boarding-Master
was called in and the Applicant threw stones at
him. On the next day the matter was reported to the police and the
Applicant is
facing a criminal charge.

The Acting Principal has attached to his opposing
affidavit a copy of the Lesotho Agricultural College Regulations and
Regulation
No.13 provides;

"13. Accommodation:

It must be clearly understood that certain residential
accommodation is set aside for students of one sex only. A student
of the
opposite sex found in this accommodation will be immediately
dismissed from the College."

He further says that on a careful review of the facts he
found that the Applicant's conduct was outrageous and inconsistent
with his
status as student of the College. In the interests of
maintaining discipline and good order inside the campus premises he
dismissed
the Applicant from the College There is nothing in the
College Regulations creating a disciplinary committee. It is at best
an
ad hoc body which the Principal may consult if he found it

fit to do so. He says that on the 1st May, 1984 he did
give the Applicant a hearing at which he admitted that he

had
assaulted the Boarding-Master and the night-watch-men

/and

-7-and that the Applicant has no genuine grounds for
complaint

Mr. Tampi has submitted that the Applicant is
basing his application on the principle of natural justice: audi
alteram partem but he contended that this was not a case in which
the principle applied. The conduct of the Applicant was so
outrageous that if
he were given the chance to be heard before the
executive head of the College took action this would seriously
undermine the authority
of the Principal at the College. He referred
me to the case of Van Wyk, N.O and another v. Van der Merwe,
1957(1) S.A. 181 at p. 188 where Schremer, J.A. said:

"The only other reason suggested for
non-applicability of audi alteram partem was that there might
be cases where it would be wrong to let a pupil stay any time at all
in the school. That may be so but as was
pointed out in Ngwevela's
case, supra, where that is the position it is permissible to depart
from the principle. But the circumstances of the present case
clearly do not bring it within the class of what may be called
emergency cases."

The case of Van Wyk differs from the present case
in that a pupil had assaulted another pupil by hitting him on the
face and stomach with a fist. The
victim had sustained no injuries
at all In the present case the Applicant first breached Regulation
No.13 by going to the women's
hostel at night. When the two
night-watch-men asked him to leave he became aggressive and started
hurling stones at them. He hit
one of them on the arm and fractured
it. The Boarding-Master was called but the Applicant threw

/stones

-8-

stones at him. In my view this was a very serious
misconduct and open defiance of the authority of the College which
necessitated
urgent and drastic steps to be taken against the
student. I am of the opinion that the present case was a proper case
where the
Principal had to depart from the principle stated above.
The Principal was justified to dismiss him forthwith in the interest
of
good discipline and order at the College.

The acting Principal subsequently gave him the
opportunity to be heard and the Applicant admitted in writing that he
assaulted the
Boarding-Master and the night-watch-men in his letter
(supra).

I have again considered Regulation No.13, supra, and my
interpretation of this Regulation is that it expressly exclude the
principle
audi alteram partem because it provides that a
student of the opposite sex found in this accommodation will be
immediately dismissed from the College. I think the word
"immediately" means that the expulsion must "occur at
once" without
given the student the opportunity to be heard A
quick glance at Regulation No.13 may give one the impression that it
is not only
unfair but unreasonable to expel the student before
he/she is heard. But on a proper consideration of the Regulation one
would find
that a student who instends to go to the hostel set aside
for students of the opposite sex will almost invariably have the
chance
to see the boarding-master or any teacher before he can enter
such hostel.

/I

-9-

I can see no emergency that would compel a male
student to go to the women's hostel without first obtaining
permission from the boarding-master
or any member of the staff. The
Applicant has not shown the existence of any emergency on the night
of the 5th April, 1984 that
compelled him to go to the women's hostel
before obtaining permission from the authorities.

For the reasons stated above the rule is discharged with
costs to the Respondents.

ACTING JUDGE.
8th June, 1984.

For the Applicant : Mr. Kambule For the Respondents .
Mr. Tampi.