CIV/APN/189/83

IN THE HIGH COURT OF LESOTHO
In the
Application of

1. 
   ARTHUR VICENT MORUTHANE 1st Applicant

   
   

2. MANASE
   TAELO MACHEFO 2nd Applicant

   
   

v.

LAWRENCE MATIME 1st Respondent

S.R. JAAS 2nd Respondent

DANIEL TALA 3rd Respondent

AMOS CHITJA 4th Respondent

MAMOLIEHI MABOBA 5th Respondent

MATHABANG TSUTSUBA 6th Respondent

MOTEBANG MAHAEANE 7th Respondent

LEORNARD G. QOLI 8th Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice J.L. Kheola on the
24th day of February, 1986

This is an application for an order in the following
terms

1. 
   Restraining the Respondents from holding
   themselves
   out as the Board of the Serutle
   Secondary School.

   
   

2. 
   Interdicting the Respondents from treating the
   Serutle
   Secondary School as a community school.

   
   

3. 
   Declaring Serutle Secondary School to be a school
   of
   the African Methodist Episcopal Church.

   
   

4. 
   Restraining First Respondent from holding himself
   out
   as the Head Master of the Serutle Secondary
   School.

   
   

5. 
   Directing First Respondent to vacate the
   Serutle
   Secondary School.

   
   

(f) /Directing

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6. 
   Directing First Respondent to give a full
   statement
   of account of the moneys collection
   during the period 1981 up to
   1983.

   
   

7. 
   Directing all Respondent to pay costs.

   
   

The matter was argued before me on the 12th February,
1986. It emerged from the founding affidavit that the First Applicant
is the
Educational Secretary of the African Methodist Episcopal
Church (hereinafter referred to as A.M.E.). He is also a pastor of
the A.M.E.
stationed at Ha Moruthoane in Maseru district. The Second
Respondent is the new manager of Serutle Secondary School in the
Butha
Buthe district. He has succeeded the late Rev. Vans who died on
the 2nd March, 1983. It will be noticed that before he died the late
Rev. Vaas had already made an affidavit dated the 19th January, 1983
regarding this proceedings.

Before I actually proceed to deal with the facts of the
case it will perhaps be convenient to state what the law is regarding
the
opening of a new school. Section 12 of the Education Order No.32
of 1971 states in no uncertain terms that before any school is opened
permission must be obtained from the Minister of Education, Sports
and Culture. It is a criminal offence to open any school without
permission of the Minister of Education, Sports and Culture. The
crucial question to be decided in this application is to whom did
the
Minister of Education grant permission to open Serutle Secondary
School? In order to answer this question it will first be necessary
to determine who formally applied for the opening of the school in
question.

In his founding affidavit Rev. Moruthane deposes that in
1979 the A.M.E. Church applied for permission to open its own
secondary school
at Serutle. The site for the school was applied for
by the A.M E. Church and registered in the Deeds Registry Office
under

/number

-3-

number 14892 on the 14th November. 1982 by the A.M.E
Church. He further deposes that the Serutle Secondary School was
registered as
an A.M.E Church School by the Ministry of Education and
in support of this he annexes a letter by the Ministry of Education,
Sports
and Culture dated the 26th January, 1982 In paragraph 3 of
the letter permission is given to A.M E. Church to open Serutle
Secondary
School on certain conditions (See Annexure A to his
affidavit). He states that until the 21st July, 1981 the First
Respondent acknowledged
the authority of the late Rev. Vaas as
manager of Serutle Secondary School. He annexes to his affidavit two
letters (Annexures D
and E) in which the First Respondent addressed
the late Rev. Vaas as the manager of Serutle Secondary School. On
annexure E the late
Rev. Vaas was being invited to a staff meeting in
which certain affairs of the school were going to be discussed

In his supporting affidavit the late Rev. Vaas deposes
that the A.M.E Church applied for the opening of its own secondary
school in
1979 and that the application was conditionally granted.
The site for the school was obtained by him and registered by him at
the
Deeds Registry Office, under number 14892 on the 14th November,
1982. He avers that the First Respondent was appointed as headmaster
by him in his capacity as manager of Serutle Secondary School and
priest in church of the parish. In January, 1982 the Educational
Secretary of the A.M.E. Church Schools directed that a school
commitee be elected by the church and that the parents of the
children
attending the school should elect two representa­tives
to serve on the school committee. In February, 1982 he heard that the
parents had elected a rival school committee without his knowledge
and without the authority of the Church. It was after the election
of
this rival committee that the First Respondent declared the school a
community school.

The Third, Fifth, Sixth, Seventh and Eighth Respondents
have filed their affidavits in which they admit that on the 20th
February,
1982

/they were...

-4-

they were elected as members of the school committee
referred to by Rev Vans. However, they deny that on that day the
First Respondent
declared Serutle Secondary School as a community
school. They aver that the school remained an A.M.E. Church school
and even though
the committee was elected it never served because the
First, Second and Fourth Respondents did not allow the committee to
have any
access to the funds of the school nor to have any say in the
running of the school. Rev. Vaas was present when this committee was
elected.

On the 7th February, 1986 the Applicants withdrew their
case against the Third, Fifth, Sixth, Seventh and Eighth Respondents
and

tendered their costs.

In their opposing affidavits the First, Second and
Fourth Respondents deny every allegation made by the applicants and
in the supporting
affidavits. First Respondent avers that Serutle
Secondary School is a community school founded by the people of
Serutle He has annexed
to his affidavit a letter from the Ministry of
Education dated August 5th, 1982 addressed to the Headmaster/Mistress
of Serutle Secon­dary
school giving official approval of the
school to operate. The school was given registration number 251.001
as unaided community school.
I must state from the outset that this
annexure does not describe the school as an unaided community school.
It does not in anyway
support the Respondents' case that the school
is a community school.

First Respondent has annexed copies of the minutes of
the parents' meetings which were held on the 17th January, 1979, 28th
April,
1979, 4th July, 1979, 20th February, 1982, He avers that the
late Rev. Vaas attended all these meetings as a parent and not as a
manager of the school. He denies that he ever acknowledged any
authority from the late Rev. Vaas and that he was never appointed
by
him as the headmaster of Serutle Secondary School . He has also
annexed the constitution of Serutle Secondary School which clearly
shows that the school is a community school.

/The supporting

-5-

The supporting affidavit is made by one 'Mamahe Chenene
who claims to be the chief of Ha Mopeli The affidavit is entirely
useless
because he avers that he was informed by the First Respondent
that he (1st Respondent) was building the school after the site had
been allocated to him by the chief of Serutle. 'Mamahe Chenene is not
the chief of Serutle and knows nothing about the application
of the
site for the school. His evidence is hearsay.

The First applicant has annexed to his replying
affidavit to First Respondent's opposing affidavit minutes of the
Eighth meeting of
the Butha Buthe District Advisory Committee on
Education which was held on the 8th June, 1979 At that meeting the A
M.E church made
an application for permission to open a secondary
school at Serutle. The District Advisory Committee on Education
recommended that
permission be granted provisionally on the basis of
need. Annexure "I" is the title deed no. 14892 and the Form
C in it
shows that the chief who allocated the site is chieftainess
'Mamohale Mokebe and not 'Mamahe Chenene who is not chief of Serutle.

Another very important Annexure is Annexure "J"
which is a certi­ficate written by the Chief Education Officer
dated
the 7th February, 1986. It reads as follows'

Ministry of Education, Sports & Culture, P.O. Box
47, MASERU 100

7th February, 1986

TO WHOM IT MAY CONCERN

This is to certify that Serutle Secondary School was
applied for and approved as a Secondary School belonging to the
African Methodist
Episcopol Church, with the Registration Number
251001.

This Registration Number is interpreted as follows

2 - refers to a Secondary School

5 - refers to the African Methodist Church

/1- refers

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1 - refers to the Butha Buthe District 0 .

0. 
   .

   
   

1. 
   - refers to fact that it is the first of the African

   
   

Methodist
Secondary School in the district.

C M BOHLOKO

CHIEF EDUCATION OFFICER

It will be noticed right from the outset that all the
documentary evidence from the Ministry of Education proves beyond any
shadow
of doubt that the school was applied for by the A M.E. church
and registered in its name. The first letter is Annexure "A"
to the First Applicant's founding affidavit. In that letter Serutle
Secondary School is referred to as an A M E. church school and
is
given registration number 251.001. This number is thoroughly
explained in Annexure "J" above I do not wish to repeat
the interpretation of what that number means because after reading
that certificate one is left in no doubt that the school is
registered
as that of the A.M.E. church. The next document is the
minutes of the eighth meeting of the Butha Buthe Advisory Committee
on Education
held on the 8th June, 1979. At that meeting the A.M.E.
church was represented by the late Rev Vaas, the eight respondent and
three
other people. The application for permission to open a new
secondary school at Serutle was made on behalf of A M.E. Church and a
recommendation was made to the Ministry of Education. This
application was followed by the approval in Annexure "A".
The
Respondents have hopelessly failed to rebut this formidable
evidence that the school was applied for by the A.M.E church and
registered
in the name of the A.M.E church. They have attempted to
allege that the late Rev. Vaas fraudulently registered the school in
the
name of the church

The serious charge of fraud against late Rev. Vaas is
not supported by any shred of evidence. The Respondents are relying
on the minutes
of

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the meetings of parents which were held on various
dates. Something very strange about these meetings is that they do
not show who
attended such meetings. At the meeting held on the 20th
February, 1982 the late Rev Vaas is reported to have told the people
who
attended that meeting that the school belonged to the A M.E.
church. He apparently made this remark when a rival committee was
appointed
The late Rev Vaas was denied the right to address the
meeting. The Respondents cannot now allege fraud when they ignored
the late
Rev. Vaas when he told them that the school was the A.M.E
church school. The Respondents have not produced any minutes of the
Butha
Buthe District Advisory Committee on Education at which their
application for the permission to open a secondary school at Serutle
was considered. The application for the opening or a new school is
usually moved by the applicant at the meeting of the District
Advisory Committee on Education because they are the people who have
to make a recommendation to the Ministry of Education as they
are
people who know the needs of their district. Section 12 (3) (4) (5)
of Order 32 of 1971 read as follows

"(3) An Application for a new school or class shall
be made to the District Advisory Committee which shall consider the
application
and forward its decision with recommendations to the
Minister

4. 
   The District Advisory Committee shall consider
   the
   application in relation to the Ministry's school map
   for
   each area or district.

   
   

5. 
   The Minister shall, after considering the decision
   and
   recommendation submitted by the District Advi­
   sory
   Committee, communicate his approval or dis­
   approval of the
   application, as the case may be to
   the applicant with a copy to
   the departmental officer
   in charge."

   
   

I must repeat that the late Rev. Vaas did not attempt to
register the school secretly without the knowledge of the
Respondents. At
the said meeting of the District Advisory Committee
on Education he openly made the application in the presence of both
the Eighth
and the Sixth Respondents who have deposed in their
affidavits that the school has always been an A.M E church school
right from
its inception. Mr. Paul

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Pule, who is now on the so called rival committee, was
present at the meeting of D A C E. He was representing the A.M.E.
church. He
cannot now be heard to say the school is a community
school

It was argued on behalf of the Respondents that the A
M.E. church has not contributed any funds towards the building of the
school
and towards payment of teachers. It has not been denied that
it was through the leadership of the late Rev. Vaas that the people
of Serutle were brought together and formed a school committee under
the wings of the A.M E church The school was registered by
the
A.M.E. church and the children who went to this A.ME. church school
had to pay school fees The school fees were paid to the
school and
were used to build classrooms and on salaries of teachers. It was
made quite clear in Annexure "A" to 1st Applicant's
founding affidavit that the school should not expect any Government
funding because of the then grants constraints. So, the church
had no
alternative but to pay teachers out of the school fees paid by the
children. That fact alone cannot make a school a community
school

For the reasons I have stated above the application is
granted as prayed in the Notice of Motion except that the costs must
be paid
by the First, Second and Fourth Respondents

J L KHEOLA

JUDGE.

24th February, 1986.

For Applicants - W.C M. MAQUTU For Respondents
- J.N. MOFOLO.