IN THE HIGH COURT OF LESOTHO

In the Appeal of

DISEBO ALINA LETSOETSA Appellant

v

SOLICITOR GENERAL 1st Respondent

OFFICER COMMANDING POLICE 2nd Respondent

JUDGMENT

Delivered by the Hon. Mr Justice J L. Kheola on the 20th day of February 1986

On the 4th March, 1983 the appellant made an application in the magistrate's court at Mohale's Hoek in which she sought an order against the second respondent to be ordered to release to her a certain Ford van with Reg No FBB 981T, engine number 7114 368340 and chassis number TPA 810203104526 which was then in the custody of the second respondent.

It is common cause that the vehicle in question was found abandoned somewhere in the district of Mohale's Hoek It had a full load of dagga The police seized it and kept it at the charge office. It is also common cause that no person was ever arrested in connection with that load of dagga

In her replying affidavit in CIV/APN/9/83 the applicant deposed that in August, 1982 a certain Ralitlhokoana Mosakeng of Mohale's Hoek asked her to lend him a vehicle to convey building materials to his home at Maleoanye's place where he alleged that he was building a house. The terms of their agreement was that Ralitlhokoana should bring the vehicle in December, 1982 He never returned it. As a result of his fa lure to bring back the vehicle the applicant came to Lesotho and got the information that her vehicle was at the Mohale s Hoek charge office. she avered that when the vehicle was taken from her the current

/registration . ...

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registration licence was in the vehicle She attached to her affidavit a 1981 registration licence

The application was dismissed on the ground that "It had been made contrary to the provisions of section 65 of the Police Order No 26 of 1971 (as amended)." The applicant did not appeal against this decision instead she lodged another application touched in the same terms as the first one In addition to that she attached a copy or her vehicle's registration licence for 1982 This second application was heard on the 18th May, 1984 and it was dismissed on the ground that it was res judicta.

The learned magistrate who decided the first application was obviously wrong because section b6 of the Police Order 1971 does not prescribe any procedure nor does it oust the jurisdiction of the magi­strate court. It does not say that a person who wishes to claim lost

and found property must not bring his claim in a court of law but must

lodge it with the police The section merely provides that if such property is not lawfully claimed by any person for a period of saw months, the policeman in whose custody the property is must inform the Commissioner who shall apply to the magistrate of the district For an order that the said property be sold by public auction. In her appli­cation the appellant had cited the second respondent in whose custody the vehicle was, so that the second respondent was not taken by surprise.

All what was expected of the appellant was to prove that she lawfully

owned the vehicle. She produced a 1981 registration certificate/licence

which was prima facie evidence of ownership The court paid no attention to this document and purported to interpret section 66 I have come to the conclusion that us interpretation was not only wrong but was uncalled for. The only issue before court was ownership of the vehicle and nothing else.

The second question is whether or not in the second application the plea of res judicata was sustainable. The essentials of a plea of res judicata presuppose that the proceedings took place in a court of

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competent jurisdiction and were determined by a judgment which was final and a settlement of the rights of the parties In the instant case the rights of the parties were not finally settled because owner­ship of the vehicle was not considered The court restricted its decision to the question of what procedure had to bo followed. In Back's Theory and Principles of Pleading in Civil Actions, 4th edi­tion by Isaacs at p 144 the learned author says that where a magistrate dismisses a rase with costs his judgment amounts only to absolution and not to a final judgment for the defendant and consequently such an order cannot, subject to certain conditions , be interposed as a plea in abatement of res judicata (Cloete v Greyling, 23 S C. 57. Christiana Municipality v Victor, 1908 T S 1117). In the instant case the court dismissed the application with costs without going into the merits. The plea of res judicata is not available to the respondent

The appeal is allowed but because the vehicle in question has already been sold by public auction the Court cannot now order second respondent to release the vehicles to the appellant. The respondent must pay costs of the appeal and costs in the court a quo.

J L. KHEOLA

JUDGE

4th April, 1986.

For Appellant - Mr Khauoe

for Respondents Mr Moguluma

CIV/A/16/85

IN THE HIGH COURT OF LESOTHO

In the Appeal of

LERATA MOKILANE Appellant v

'MATHABISO MOKILANE Respondent

JUDGMENT

Delivered by the Hon Chief Justice Mr Justice T.S. Cotran on the 18th day of February 1986

This is an appeal against the Judgment of a Magistrate sitting at Butha-Buthe in which she awarded the Plaintiff the sum of M60 per month maintenance, M40 for her, and M20 for a child allegedly fathered by the defendant. It was conceded by the appellant's counsel in the appeal, and it was clear from the trial record, that the plaintiff and defendant were married by custom after an elopment and that the child was born during the subsistence of that marriage. In custom it is possible to have more than one wife. Defendant had two. There is no evidence that the defendant took any steps to divorce plaintiff either by going to the local court or in any other acceptable manner outside court.

what was disputed in the appeal is the correctness of the finding that the child was fathered by the defendant What has happened is that the wife shuttled between her own parents house and her parents in law's house The mother of the defendant did not like the plaintiff and it was suggested that the defendant's father was in fact the father of the child of the plaintiff who was his daughter in law' This was highly unlikely and

/ bordered . . ...

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bordered on the preposterous. There was not an iota of evidence to support it. The magistrate rightly rejected the suggestion.

The appeal is dismissed with costs.

T. S COTRAN CHIEF JUSTICE

18th February. 1986

For Appellant Mr. Nqakana For Respondent Mr G.N. Mofolo

CIV/APN/15/85

IN THE HIGH COURT OF LESOTHO

In the Application of

LESOTHO EVANGELICAL CHURCH Applicant v

ESAIA THITE 1st Respondent

THE STANDARD BANK PLC 2nd Respondent

JUDGMENT

Delivered by the Hon Mr Justice J.L Kheola on the 17th day of February. 1986

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 Evangelical Church
   Secondary School presently run in the Lesotho
   Evangelical Church building at Teyateyaneng 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.. ..

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

2 An order that prayers (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, 1985. Mr. Sello for the Applicant is seeking confirmation of the Rule while Dr. Tsotsi for the Respondent asks the court to discharge the Rule Having had the submissions by both counsel I confirmed the Rule Nisi with costs The First Respondent appealed to the Court of Appeal. The case was remitted to the High Court for the hearing of oral evidence for the purpose of resolving the disputes of fact which exist on the papers, and a deter­mination of the issues raised in the Application The order on remittal reads as follows

"The dispute of fact relate to, and the issues to be determined by the High Court are -

1. Who is entitled to run and administer the school at
   Teyateyaneng known as "T Y L E C. Secondary School"
   or "Teyateyaneng Secondary" School or "Teyateyaneng
   F P A. High School"

2. Who is entitled to utilise the funds in and operate upon
   the banking account at the Standard Bank Maseru previously
   under the name "Teyateyaneng L E C Secondary School" and

at present under the name "Teyateyaneng F P.A. High School."

Accordingly whether the Applicant was and is entitled to all or any of the relief sought in the Notice of Motion."

The founding affidavit has been made, signed and sworn to by Mr. Moeketsi Mackenzie Tiheli who is the Educational Secretary of Schools of Applicant He has deposed that in about 1980 the Applicant lodged an application with the Ministry of Education in terms of section 12 of The Education Order No.32 of 1971 for permission to open a new secondary school at Teyateyaneng to be known as Teyateyaneng Lesotho Evangelical Church Secondary School.

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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 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 Teyateyaneng L.C.C Secondary School to F P A. High Chool. This action was done without the knowledge, consent or authority of the Applicant On the 8th January, 1985 Mr. G M. Kolisang wrote a letter to Rev C M. Seotsanyana, Applicant's Minister in charge of Teyateyaneng Parish, advising him to stop interfering in the affairs of Teyateyaneng Secondary School and further informing him that the school which was previously known as Teyateyaneng L E.G. 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 Annexure "B", letter from the Statistics Unit giving Registration No 223.005 is Annexure "C", the letter written by 1st Respondent to 2nd Respondent changing the account's name is Annexure "D" and the letter from Mr Kolisang to Rev. Seotsanyana is Annexure "F").

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In his answering affidavit the First Respondent denies that he ever operated any secondary school belonging 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 Toyateyaneng 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. 2t was also explained to them that the proper channels were that the application 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 as the procedure described in Applicants letter would take ton long it was better to abandon the idea of a church school and to form a community school instead. Consequently they formed an associa­tion called Teyatoyaneng 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 First Respondent further deposes that on the instructions of the school committee he borrowed the use of a schoolroom of the L E C. premises at Teyateyaneng 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

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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 28th February, 1984 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 anomally and consequently the registra-tion number of their school was changed to 213.001 (see-Annexure "M").

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 how 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 Seotsanyana and Agnes 'Mabaholo Baholo form part of the record I shall refer to them and their annexures in the course of my judgment.

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

"(1) No person or society shall 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 accordance with the provisions of this Order and the regulations made under section 21

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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 offence, 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 Ministry of Education had been obtained, Rev CM 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 wherever he pleased. 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 Board 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 is 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 October, 1983 per Annexure "B". Annexure "C" gave the school a registration number 223 005.

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There is therefore no doubt that the school known as Teyateyanenq L.E.C. Secondary School belongs to the Applicant. The First Respondent is obviously not tolling 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, 1981 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 secondary 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 he then made an announcement in church on the 1st November, 1981. It is clear from the 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, 1982 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."

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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 pas 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 got 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 Teyateyanenq nonetheless took the proper channels as advised in Annexure "G" The matter went to the consistory, the Presbytery 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 Teyateyaneng 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, 1983. 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 hod made.

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

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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 Lesotho Evangelical Church." (My underlining).

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

ANNEXURE "X"

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 believed 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 LCC then started denying it and we as parents took responsi­bility for it.

I new 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.

10 -

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 sinned. 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 called Teyatoyaneng Secondary School "Founders/Parents Association". In fact the name of the Association docs 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 , Teyateyaneng 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"). The association which was incorporated on the 10th May, 1983 was known as Teyateyaneng Secondary School 'Founders/ Parents Association. 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

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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 question to be decided by this Court is whether, having heard oral evidence of both parties and their witnesses, there are any new facts that could persuade the court to arrive at a different conclusion. I have found no new facts. Be that as it may certain new exhibits were handed by both parties and I think it will be proper to refer to them Exhibit A is a letter written by the Local Administrative Officer of Berea to the Commissioner of Lands. It is clear from this letter that the application for a site for a secondary school at Teyateyaneng was made by Rev Seotsanyana on behalf of the Applicant Exhibit D also shows that initially the 1st Respondent was representing the Applicant when he made an application and that he later changed his mind and applied on behalf of F.P.A

The First Respondent handed in a number of documents as exhibits. E.T.6 is a letter written by the First Respondent to Chief Moabi and his Land Allocating Committee in which he (1st Respondent) makes it quite clear that he is applying for a site for a secondary school on behalf of the Priest and the congregation of Teyateyaneng I must emphasise that as far as I am concerned there has never been any dispute of fact in this application. In the minutes of the Ninth Meeting of the Berea District Advisory Committee on Education held on the 6th June, 1980 Rev. Seotsanyana is reported to have made an application for the opening of three secondary schools at Teyateyaneng, Piting and Koeneng. He was then advised to inform Managers concerned to submit their applications to the Permanent Secretary for Education through their Educational Secretary. At the Ninth Meeting of the Central

12

Advisory Board on Education held on the 13th November, 1980 Applicant's application for the opening of a secondary school at Teyateyaneng was passed to the Permanent Secretary for Education. After several reminders made by the Applicant's Educational Secretary to the Perma­nent Secretary the permission to open the school was made (see Annexure B).

All documentary evidence in this case show beyond any reasonable doubt that the First Respondent had been acting on behalf of the Applicant in founding and running of the school He apparently changed his mind when he discovered that the Applicant could not own land and when Rev. Seotsanyana told the Inspector of School that he was not responsible for the opening of the school contrary to the law. In his evidence the 1st Respondent stated that if Rev. Seotsanyana had accepted the responsibility that the school had been opened by the Church that would have been the truth. He stated that when Rev Seotsanyana made this denial he decided to seize the school for the community.

The writer of E.T.1 was obviously making a mistake when he purported to be registering two different schools. It is clear from Annexure "M" that the registration number of the Applicant's secondary school at Teyateyaneng was changed so as to reflect that it was then run by the Teyateyaneng School Founders/Parents Association. The deliberate and fraudulent attempt by the First Respondent in misleading the Ministry of Education that there were two schools must be rejected

I have come to the conclusion that the Applicant is entitled to all the relief sought in the Notice of Motion and that the Rule Nisi granted on the 21st January, 1985 is confirmed with costs to the Applicant by the First Respondent. The costs of previous appeal must be paid by the First Respondent because there was never any dispute of

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fact which could not be resolved by the evidence in the affidavits.

J L. KHEOLA JUDGE

17th February, 1986.

For Applicant Mr. Sello
For Respondents Dr Tsotsi