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
First Respondent shall not be interdicted fromoperating a bank account with the 2nd Respondentoriginally named L.E C Secondary School accountunder whatever name the said account is presentlyknown
First Respondent shall not be interdicted frominterfering with or otherwise having any dealingswith the Teyateyaneng Lesotho Fvangelical ChurchSecondary School presently run in the LesothoEvangelical Church building at Teydteyaneng withoutthe consent and authority of Applicant or Applicant'sagent.
Second Respondent shall not be interdicted from payingout any monies from the said account to the 1stRespondent and or any associate or agent of 1stRespondent
Second Respondent shall not be directed to permit theApplicant only or its duly authorised agent or agentsto operate the said account
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(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
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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
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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".
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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J.L. KHEOLA JUDGE
25th March, 1985