CIV/APN/15/35

IN THE HIGH COURT OF LESOTHO
In the
Application of

LESOTHO EVANGELICAL CHURCH Applicant

ESAIA THITE 1st Respondent

THE
STANDARD BANK PLC 2nd Respondent

JUDGMENT

Delivered by the Hon Mr. Justice J L Kheola
on
the 25th day of March, 1985

This is an application for the granting of a Rule Nisi
calling upon the Respondents herein to show cause, if any, why

1. 
   First Respondent shall not be interdicted
   from
   operating a bank account with the 2nd Respondent
   originally
   named L.E C Secondary School account
   under whatever name the said
   account is presently
   known

   
   

2. 
   First Respondent shall not be interdicted
   from
   interfering with or otherwise having any dealings
   with
   the Teyateyaneng Lesotho Fvangelical Church
   Secondary School
   presently run in the Lesotho
   Evangelical Church building at
   Teydteyaneng without
   the consent and authority of Applicant or
   Applicant's
   agent.

   
   

3. 
   Second Respondent shall not be interdicted from
   paying
   out any monies from the said account to the 1st
   Respondent
   and or any associate or agent of 1st
   Respondent

   
   

4. 
   Second Respondent shall not be directed to permit
   the
   Applicant only or its duly authorised agent or agents
   to
   operate the said account

   
   

/(e) First ....

-2-

(e) Rirst Respondent shall not be ordered to pay costs
of this Application

2. An order that praters (a), (b) and (c) operate as an
interim interdict having immediate effect

On the 21st January, 1985 the Rule Nisi was granted and
the return day was the 28th January After several extensions of the
Rule
the matter was finally argued before me on the 13th March Mr.
Sello for the Applicant is seeking confirmation of the Rule while
Dr. Tsotsi for the Respondent asks the court to discharge the Rule
The
founding affidavit has been made, signed and sworn to by Mr
Moeketsi Mackenzie Tiheli who is the Educational Secretary of Schools
owned by the Applicant. He has deposed that in about 1900 the
Applicant lodged an application with the Ministry of Education
interms
of section 12 of The Education Order No 32 of 19/1 for
permission to open a new secon­dary school at Teyatoyaneng to be
known
as Teyateyaneng Lesotho Evangelical Church Secondary School.

On the 31st October, 1983 the Permanent Secretary for
Education, Sports and Culture wrote a letter to the deponent that
permission
had been granted to the L E C to open a secondary school
at Teyateyaneng In that letter it was made quite clear that there
would
be no financial assistance from the Ministry of Education., By
copy of this letter the Education statistician was requested to
allocate
the new school a registration number By letter of the 7th
November, 1983 the Statistics Unit of the Ministry of Education
advised
the Educational Secretary that their school T.Y. L E.C
Secondary School had been given Registration Number 223 005. He was
asked
to supply the Unit with the address of the school.

Mr. Tiheli further states that prior to the aforesaid
registra­tion, the First Respondent, an elder of the Applicant
church at
Teyateyaneng, started operating the said school in
Applicant s Church premises at Teyateyaneng. He started collecting
school fees
and

/depositing....

-3-

depositing them in a bank account with the Second
Respondent in Maseru and also appointed an interim committee to
assist in the running
of the school On the 5th July, 1983 the First
Respondent wrote a letter to the Second Respondent directing it to
change the name
of the account from Teyeteyaneng L E C. Secondary
School to F.P.A. High School This action was done without the
knowledge, consent
or authority of the Applicant On the 8th January,
1985 Mr. G.X. Kohsang wrote a letter to Rev CM. Seotsanyana,
Appli­cant's
Minister in charge of Teyateyaneng Parish, advising
him to stop interfering in the affairs of Teyateyanong Secondary
School, and
further informing him that the school which was
previously known as Teyateyaneng L.E.C Secondary School had changed
name and registration
number and that it would be run by the
founders/parents association. (The letter authorising the Applicant
is Annexuie "B",
letter from the Statistics Unit giving
Registration No. 223.005 is Annexure "C", the letter
written by 1st Respondent to
2nd Respondent changinq the account's
name is Annexure "D" and the letter from Mr Kolisang to Rev
Sootsanyana is Annexure
"F")

In his answering affidavit the First Respondent denies
that ne ever operated any secondary school belonginq to the
Applicant. He admits
that he was elected as chairman of a committee
of parents formed in 1979 for the purpose of establishing a secondary
school in the
Teyateyaneng area As all the founders of the school
were members of the Lesotho Evangelical Church it was initially hoped
that the
L.E.C would give its blessing to the venture and take the
school under its wing. That is the reason why the school was named
the
Teyateyaneng L E C. Secondary School On the 10th July, 1979 the
committee wrote a letter to the Applicant asking for permission
for
the establishment of the school. In reply to this letter the
Applicant asked the applicants what their status was as they said
they were applying on behalf of the church and the community. It was
also explained to them that the proper channels were that the
application

/from....

-4-

from a parish must go to a Presbytery and after it has
been approved by the Presbytery it can then go to the L.E C
Headquarters (The
letter is Annexure "G") The committee
considered the reply and de­cided that as the procedure described
in the Applicant's
letter would take too long it was better to
abandon the idea of a church school and to from a community school
instead Consequently
they farmed an association called Teyatayaneng
Secondary School Founders/Parents Asso­ciation which was to run
the school The
association was duly registered under NO.83/25 in the
Societies register (see Annexure "H").

The Second Respondent further deposes that on the
instructions 01 the school committee he borrowed the use of a
schoolroom of the
L.E.C. premises at Toyateyaneng from Rev.
Seotsanyana and he agreed on certain conditions. The school was
launched in January, 1982
The association applied for the
registration of the Teyateyaneng Secondary School with the Ministry
of Education. By letter dated
the 11th November, 1983 (Annexure "K")
addressed to the Headmaster Teyateyaneng L.E.C Secondary School, the
Ministry of
Education advised them that it had approved the operation
of their school and gave it the registration number 223.005. The
First
Respondent received a letter from Applicant (Annexure "L")
advising him that at a special meeting of the Presbytery held
on the
23th February, 1084 he had been appointed to the Board of Governors
of the Teyateyaneng Secondary School and requesting him
to call a
meeting of members to an inaugural meeting for the election of a
Chairman, He decided to ignore this letter

Subsequent to the receipt of Annexure "L" the
First Respondent learnt that the registration number allocated by the
Ministry
of Education to their school namely 223 005 was identical
with that allocated to Teyateyaneng L E.C Secondary School
which the Applicant purported to operate His association drew the
attention of the Ministry of Education to this
anomaly and
consequently the registration number of their school wab changed to
213.001 (see Annexure "M".

/In.

-5-

In his replying affidavit Mr. Tiheli challenges the
First Respondent to produce any scrap of paper to show that he or his
association
ever made any application for the opening of a new
secondary school Annexure "K" was written after he had
advised the
Statistics Unit of the address of the Applicant's school
as he was requested to do in Annexure "C". He also
refers to Annexure "X" which clearly shows now fraudulent
the 1st Respondent was in
having the registration of the site changed
into the name of his association.

The affidavits of Jeremiah Nonyana Lebeko who is the
Principal of the Applicant's school, Rev C M. Seotsanyaoa and Agnes
'Mabanolo
Baholo form part of the record. I shall refer to them and
their annexures in the course of my judment

I shall first of all refer to section 12 of The
Education Order No.32 of 1971 which reaas as follows

"(1) No person or society snail open any school or
shall assist in the opening of a school after the date of the
commencement
of this Order, or continue in existence any existing
school 6 months after that date, unless it has been approved by the
Minister
and registered in accordanse with the provisions of this
Order and the regulations made under section 21

Provided that all schools which were approved and
registered prior to the commencement of this Order shall be deemed to
have been
registered and approved under this Order, unless otherwise
ordered in pursuance of the provisions of this Order

(2) Any person who contravenes any of the provisions of
this section shall be guilty of an ofrence, and shall be liable on
conviction
to a fine not exceeding four hundred rand, or imprisonment
for a period not exceeding one year, or to both such fine and such
imprisonment
"

It is clear from this section that any person who wants
to open a new school must first of all apply to the Ministry of
Education
and get approval before the school is opened Penalties for
contravention of this section are very severe indeed It is
understandable
why when the inspector of schools one Mr Lekhanya
discovered that the school had been opened before the formal approval
of the Minister
of education

/had...

-6-

had been obtained, Rev C.M. Seotsanyana denied that he
was the one responsible for opening the school contrary to the law
The 1st
Respondent accepted responsibility and told Mr. Lekhanya to
go to places In my view this conduct on the part of Rev. Seotsanyana
cannot be interpreted as a total disowning of the school because
there is evidence that at that very moment Applicant's application
for opening the new school was already in the hands of the
authorities (see Annexure "R" and "S") Annexure
"S"
is very important and rele­vant because it
relates to minutes of the nineth meeting of the Central Advisory
Beard on Education which was
held at the Ministry of Education Board
room on the 13th November, 1980. Amongst the applications for new
secondary schools which
were referred to the Permanent Secretary for
Education Applicant's school at Teyateyaneng appears as number two on
the list. This
proves beyond any doubt that as early as 1980 the
Applicant had in fact applied to the authorities to be allowed to
open a secondary
school at Teyateyaneng.

The approval was eventually given on the 31st 0ctober,
1983 per Annexure "B" Annexure "C" gave the
school a registration
number 2223.005. There is therefore no doubt
that the school known as Teyateyaneng L.E.C, Secondary School belongs
to the Applicant.,
The Second Respondent is obviously not telling the
truth that as early as July, 1979 he and the committee that was
running the school
on behalf of the Applicant decided to form an
association to found a community school run by founders parents
association because
at the first meeting that was held on the 7th
November, 1081 it was reported that on the 30th October, 1981 the 1st
Respondent had
phoned Applicant's School Secretary reminding him of
the founding of the secondly school, in reply the Secretary of
Schools informed
the 1st Respondent that he had already written a
letter to Rev. Seotsanyana informing him that approval had been
obtained The 1st
Respondent went to Rev. Seotsanyana and the latter
told him that he had forgotten about it and ho then made an
announce­ment
in church on the 1st November, 1981 It is clear
from the

/minutes.....

-7-

minutes of the 7th November, 1981 that the 1st
Respondent and his committee were acting on behalf of the Applicant
He is obviously
lying when he says on the instructions of the school
committee he borrowed a classroom from Rev. Seotsanyana. There is
overwhelming
evidence that at that stage, i.e January, 198? he and
the committee were acting on behalf of the Applicant (see Annexure
"X"
"XI", paragraph 6 of Mrs Baholo's affidavit
page 81 of the record minutes of the meeting held on the 23rd April,
1982).

Mr. Sello has submitted that at the time the
school was opened in January, 1982 the founders/parents association
did not exist, it was registered
on the 10th May, 1983 long after the
school had been opened by the Applicant. I agree with this
submission. Although Rev. Seotsanyana
did not want to be seen as a
party to the running of a school contrary to law there can be no
doubt that the 1st Respondent and his
committee were acting on behalf
of the Applicant in the running of the school This fact is admitted
by the 1st Respondent in a letter
which he wrote to the Department of
Lands and Survey (Annexure "X") in which he said "We
all along believed that
it was a school under L.E.C. and the L.E.C'S
also believed likewise "

Dr Tsotsi has argued that the school was founded
by the committee of which the 1st Respondent was the chairman because
originally the committee
made an application to the church but this
application was turned down per letter dated the 31st July, 1979
(Annexure "G")
and then the committee decided to go ahead
without the church. It seems to me that Annexure 'G" is not a
refusal by the Applicant
to get involved in the founding of the
school. In that letter Applicant explained to Mr J N Lebeko and the
committee the proper channels
they had to follow in order that the
Applicant could be in a posi­tion to consider their application
In his affidavit Mr. Lebeko
deposes that even though he had not
received Annexure "G" the church at Teyateyaneng
nonetheless Look the proper channels
as advised in Annexure "G".
The matter went to the consistery, the Presbytery

/and the

-8-

and the Executive Committee of the church where the
request was approved. I am of the view that what Mr. Lebeko has said
in his affidavit
is true as it is consistent with the fact that the
appli­cation by the Applicant did in fact reach the Ministry of
Education
after the people at leyateyaneng church had apparently
followed the proper channels.

Dr. Tsotsi further submitted that in Annexure "B"
reference is made to the letter of the 11th October, 1933 and there
is no reference
to an application made in 1980 I agree with this
submission but I have already dealt with this matter earlier in my
judgment when
I referred to the meeting of the Central Advisory Board
on Education held on the 13th November, 1980., On that day the
Applicant's
application was before the Board and was referred to the
Permanent Secretary for Education. MR. Sello submitted that
the letter of the 11th October 1983 was one of a series of reminders
the Applicant had made

I shall now deal with Annexure "K" ana compare
it with Annexure "B" and Annexure "C" Although I
am
not a handwriting expert it can­not be disputed by anybody
that the signature appearing on Annexure "C" differs from
that appearing in Annexure "K" and yet they are supposed to
bo the signatures of one J.K. Makatise It is beyond my
understanding why Makatise could allocate a number to T.Y L.E C.
Secondary School on the 7th November 1983
and five days later on the
11th November allocate the same number to a different school
affixing a different signature and using a roneod form and not
writing a letter as he did in Annexure
"C". Even the
addresses differ - in Annexure "C" his address in P.0 Box
1126, Maseru. In Annexure "K"
it is P.0 Box Ms 47, Maseru
It has been argued on behalf of the Applicant that the 11st
Respondent fraudulently dishonestly misled
an official in the
Ministry of Education to write Annexures "M" and "K"
on the understanding that the school
the 1st

/Respondent.....

-9-

Respondent was trying to register was a different
school. I agree with this submission because if the 1st Respondent
made it quite
clear that the school he was talking about was the same
school that had been registered under number 223 005 the official
would not
have agreed to allocate two numbers to the same school
simply because there is a dispute between the Applicant and the First
Respondent,
Unless the 1st Respondent is a dishonest person I see no
reason why he deceived the officials in the Ministry of Education
that his
school was a different school from that of the Applicant
Now that I have dis­covered some discrepancies in Annexure "K"
I greatly suspect its authenticity In any case the permission to
open a new school is given by the Permanent Secretary for Education
as clearly appears in Annexure "B" and the work of the
Education Statistician appears to be to allocate registration
numbers.
But in the case of Annexure "K" it was the
Statistics Unit of the Ministry of Education that granted such
permission

Annexure "M" does not make sense at all It
reads

"The office of the Permanent Secretary, Ministry of
Education, instructs me to change the registration number of your
school,
Teyateyaneng Secondary School, so as to reflect that it is
run by the Teyateyaneng Secondary School Founders/Parents Association
"

I find it very strange and unbelievable that the
registration number of a school may be changed simply because it is
going to be run by a different
body from the one that founded it The
school has remained the same and the same address and it would be
very interesting to see
who was running this school before the change
brought about by Annexure "M" I have no doubt that the
records of the Ministry
of Education will reveal that it was the
Applicant under number 223 005. The signature of Makatise on Annexure
"M" appears
to be another variation from the first ones I
wish this gentleman or lady Makatise had made an affidavit to tell us
what mess he
had been doing in the registration of this school. He
had no right whatsoever to cancel the registration of Applicant's

/school.. .

-10-

school and give it to the 1st Respondent and his
Association without hearing the Applicant He must have realized that
there was some
sort of dispute between the Applicant and the 1st
Respondent. On this occasion Makatise decided to make Annexure "M"
appear
very authentic, he wrote it on the 5th July, 1934 and four
days later on the 9th July, 1984 he stamped it with the official date
stamp of the Ministry of Education It is very unusual
to date stamp a letter in that manner.

The application for the site of the secondary school was
made by the Applicant This appears in Annexure "Q" which
is a
letter written to the Headmaster, T.Y. L E.C. Secondary School
by the Commissioner of Lands. The first three lines of the letter
read

"I am ready to proceed with the process of
arranging for a grant of lease of the above mentioned site for
educational purposes to the LesothoEvangelical Church" (My
underlining).

Following this letter on the 19th January, 1983 the 1st
Respondent wrote a letter to the Commissioner of Lands which reads as
Follows

ANNEXURE "XI"

P.O. Box 28, Teyateyaneng, 19.1.83.

Lands & Survey, MASERU

Dear Sir,

re, SITE TY LEC SECONDARY SCHOOL

We started the Secondary School mentioned above in 1982
We applied for a site, which was promised to us under the same name T
Y L.E.C
Secondary School and it was surveyed We all along behaved
that it was a school under the LEC church and the LEC s also believed
likewise But as things went along, the Ministry of Education wanted
to know as to who had granted permission for the school with
what
letter It is then that LEC then started denying it and we as parents
took responsi­bility for it.

/I now

-11-

I now request that this site which has been applied for
in the name of LEC should please be changed over to us as the parents
of children
who attend that school, particularly, because it was
applied for by us in the name of the LEC originally

We now call the school Teyateyaneng Community Secondary
School.

E. THITE on behalf of the Committee of Parents.

This letter shows beyond any doubt that the 1st
Respondent was taking what was not his. I do not know whether the
Commissioner of
Lands complied with the request and issued the lease
in the name of the association If he has done so that is proof that
the 1st
Respondent can manipulate some of the officials in any manner
he pleases. The Commissioner of Lands was under a duty to hear the
Applicant before he could make any change

Dr. Tsotsi submitted that as the minutes
(Annexure Y) have not been signed they have no legal effect. He did
not refer me to any authority for
that proposition I had the
opportunity to refer to The Law of Partnerships and Voluntary
Associations in South Africa, Second Edition, by B Bamford at
page 129. All that is required is that the chairman must make sure
that the minutes should be kept
at least in the case of a business
meeting of any importance. There is nothing to show that they have to
be signed. The other requirement
is that at the next meeting the
minutes must be confirmed (Heathcote v. Stutterheim
Municipality, 1963 (3) S A 35 (E) )

It was submitted on behalf of the 1st Respondent that he
has no locus standi in judicio and that the Applicant ought to
have sued the Association as a legal persona The difficulty as
I see it is that in the letter which the 1st Respondent wrote to the
Manager of the 2nd Respondent (Annexure "D"
& "E")
he did not state or indicate in any manner whatsoever that he was
acting on behalf of an incorporated

/society....

-12-

society called Teyateyaneng Secondary School
"Founders/Parents Association" In fact the name of the
Association does not
appear anywhere in that letter. It is true that
the 1st Respondent signed as chairman but it is not clear whether he
was referring
to the school committee of the Applicant In the letter
he refers to

Teyateyaneng F.P A High School, Box, Teyeteyaneng 200.

Obviously the association referred to in the letter is
definitely a different one from the one that was incorporated on the
10th May,
1983 (Annexure "H") In any case it seems to me
that the 1st Respondent was discovered by the Applicant at the outset
when
he was trying to transfer the property of the Applicant to his
association. This attempt he did in his personal capacity.

In Annexure "X" the 1st Respondent signed on
behalf of the committee and the parents. Again I do not know which
committee
he was referring to. The only committee that was already in
existence when he wrote that letter was the school committee of the
Applicant
(see Annexure "Y"). I have come to the conclusion
that the 1st Respondent has locus standi because he did all
these things in his personal capacity.

The Rule Nisi granted on the 21st January, 1985
is confirmed with costs.

J L. KHEOLA JUDGE

25th March, 1985.

For Applicant Mr, Sello
For Respondent Dr
Tsotsi

-13-
ADDENDUM

This morning I was just about to read the judgment I had
prepared when Dr Tsotsi indicated to me that he had an
application to make for leave to adduce further evidence My initial
reaction was to tell him that
as I had already prepared a written
judgment I was somewhat hesitant to entertain such an application,
but after a proper and mature
consideration of the matter and on
realising that the application was lodged with the Registrar on the
19th March, 1985 I decided
to hear the application I took this
decision despite a very strong opposition by Mr Sello that the
Respondent should not be given the chance after the weaknesses in his
case had been exposed and judgment was about to be
delivered. It was
submitted on behalf of the Respondent that at the time the matter was
heard the evidence was not available and
that was the reason why the
evidence was not led

The evidence turned out to be a letter written on the
15th March, 1985, by an official in the Ministry of Education I do
not propose
to waste my time to go into the contents of this letter
because it was written long after I had heard arguments in this
matter. I
do not think that a party is allowed to close loopholes in
his case by manufacturing evidence that did not exist when the case
was
closed and judgment was reserved If this were allowed there
would be no finality to litigation because each party would try to
rake
up any piece of nonsense in an attempt to delay the outcome of
the case. The letter in this case does not appear to be material to
the issue because it repeats what has already been thoroughly
threshed out and it is unlikely to have any effect on the result of
the case

For the reasons stated above I disallowed the admission
of the evidence There will be no order as to costs

/14.

-14-

J.L. KHEOLA JUDGE

25th March, 1985