IN THE HIGH COURT
In the matter of
PETRONELLA MATSHEGO Applicant
v NATIONAL UNIVERSITY OF LESOTHO Respondent
Delivered by the Hon. Mr. Justice Sir Peter Allen on the
5th day of November, 1987
The applicant is a South African citizen who entered the
respondent University as a third year student in the faculty of
during the 1986-87 academic year after commencing her
studies at the University of Botswana Why she changed universities
was not revealed She claimed that her studies were
being sponsored under a UNEPSA/UNDP scholarship grant
In her Notice of Motion the applicant asked the Court
for the following orders
1) That the Respondent is hereby directed to release
the full examination result of Applicant for the
1986-1987 academic year, have the same published and/or otherwise
to Applicant on or before the 14th day of October
2) That pending compliance with order 1above,
Respondent is directed to haveApplicant provisionally registered
as afinal year (4th year) student in thefaculty of
Humanities, and to followcourses and attend lectures as such.
/3) That ...
3) That Applicant received an 'E' symbol inH311, is
therefore entitled to supplement,
and Respondent is hereby directed to administer a
supplementary examination on said subject to Applicant in December
That Respondent is hereby directed tobear the full
cost of Applicant's registration, tuition, boarding and
lodgingwith Respondent and all other expensescovered by
Applicant's scholarship forthe 1987-88 academic year in the
eventthat Applicant is unable to secure scholarship
from sponsors because of Respondent'sdelay in releasing
Applicant's 1986-87examination results.
That the ordinary requirements of the rulesof Court
in respect of applications arehereby dispensed with.
That Orders 1, 2, and 3 operate withimmediate
effect as interim interdicts.
On 8 October 1987 the applicant obtained an ex parte
Order from the Court in terms of the above Notice of Motion On 21
applicant filed another Notice of Motion asking for the
following orders -
Directing the Respondent through itsRegistrar and
the Assistant Registrar-Academic, to immediately comply
withOrder 2 of this Court issued on 8October 1987 directing
the Respondentto have Applicant provisionally registered
as a final year student inthe faculty of Humanities and to
allowher to attend courses and attendlectures as such.
Calling upon the Registrar and
AssistantRegistrar-Academic respectively ofRespondent to
come and show cause,
if any, on 23 October 1987 why they jointly and
severally should not be held in contempt of this Court's Orders of 8
as aforesaid and imprisoned therefor.
On 23 October the matter came before Molai J. who
declined to proceed advising the parties very seriously to go away
a settlement of their differences
/and postponing ...
and postponing the application until 28 October
When the matter came before me on 28 October the ,
proceedings were somewhat confused. This was because there were now
of motion, one of which was for contempt proceedings, and
in addition the respondent wished to raise a preliminary point (or
in limine as it seems to be called here) in the original
Mr Addy for the applicant started by addressing the
Court on the application for contempt proceedings but perhaps
himself speaking on the merits of the original
application since the two were so intertwined. This left Mr. Matsau
because he had to bring up his preliminary point
after the merits had been argued. So he addressed the Court on both
1 shall first consider the contempt proceedings followed
by the preliminary point and then the merits of the original
but 1 think it is going to be difficult to avoid
considering the merits on the way.
At the start of the proceedings 1 asked Mr. Addy to
inform the Court just how the proposed contempt proceedings could
the applicant. This was also in the hope that he had
taken the earlier advice of Molai J. and had thought seriously about
applicant was doing. In reply Mr. Addy spoke about the
applicant's alleged rights and entitlements and went on to demand
for) the arrest of the University
Registrar and the Assistant Registrar-Academic. He added
that the Court must ensure that its orders are obeyed.
It was clear that neither Mr. Addy nor the applicant had
given sufficient thought to the consequences of the later
Court can look after itself and does not need to be
told what to do. But arresting people in civil matters is not often
solution. Surely it is a matter of simple common sense
that it is extremely unwise and unlikely to be helpful for a
to come to Court and ask for the arrest of various
senior officials of that university. It is just a matter of ordinary
that as a result, such a student might not be treated
very kindly or generously later on when it comes to marking her
considering her for the award of a degree
Even if the applicant did not realise this possible
danger, her attorney had a plain duty to warn and advise her against
a drastic step. This was particularly so after their
appearance before Molai J. on 23 October when, in Mr Addy's own
Judge had strongly and seriously advised them to think
again. This, followed by my own query at the start of these
should have alerted counsel to the way the Court was
thinking. Any experienced counsel should be well aware that it seldom
ignore the views of Judges when they are clearly indicated at
the start of, or in the course of, a hearing.
As I stated at the beginning of that hearing, I have no
intention of ordering the arrest of these officials This unnecessary
between the parties could have been avoided if no
interim interdicts had been requested and ordered. It is my view,
that an ex parte hearing at the beginning should have
been refused. The alleged urgency of the matter should have taken
to the clear need to have both parties before the Court
so as to encourage them to resolve their differences.
The first three prayers of the original Notice of
Motion, and contained in the Court Order of 8 October, are, in my
academic matters which are the sole concern of the
respondent University and outside the competence and scope of this
Court. I will
say more of this later.
Bearing in mind that the extraordinary ex parte Order
was made on 8 October it will be seen from documents filed later by
that the Order was unnecessary This would no doubt
have been revealed if instead an order had been made to serve the
before there was any hearing of the application.
Attached to the respondent's Answering Affidavit is a
memorandum (marked "NUL 5(1)") from the Administrative
Humanities to the Assistant Registrar-Academic dated 9
October 1987 It reads as follows -
" Ms P Matshego
This serves to inform you that the faculty of Humanities
at its meeting held on 7 October 1987 agreed that
- the above named student be allowed to sit a
supplementary examination in H311 in December this year, 1987,
/- if the . .
if the student succeeds to get (sic) a mark(in that
particular examination) which wouldraise her overall weighted
mean to aminimum of 50% she can then proceed to thefourth
year of her programme of study,
but if she fails the examination, she willhave to
repeat the third year of her study
(Signed) L. M. Setsabi"
It will thus be seen that the faculty meeting took place
on the day before the applicant came rushing to Court The above
gave her what she wanted and was apparently in answer to her
earlier letters to the faculty and department ("NUL 4" and
"NUL 5(2)" annexed) of 14 and 31 August 1987.
In addition, the examination results demanded in para 1)
of the original Notice of Motion and subsequent Court Order were
to her on or around 13 October (see annexure "NUL 7").
These results were not very good and there was a "recommendation"
(which I take to mean really a "requirement") that she
"must supplement H311 in December 1987 "
Clearly those results were available earlier since the
faculty meeting on 7 October (referred to above) considered that
and gave a ruling on it. Thus if she or her attorney
had made the necessary enquiries in person no doubt all this
been revealed to them, so avoiding this application to
Furthermore, the applicant knew of these results before
coming to Court on 23 October, let alone before appearing before me
October In spite of this Mr Addy persisted in "demanding"
the arrest of the res pondent's officials. This was done with
to be unnecessary aggressiveness by Mr. Addy and
ill-advised vindictiveness by the applicant, which is to be deplored.
Thus I find myself quite unable to hold the respondent
in contempt of Court for allegedly disobeying an order which, in my
and with respect, should not have been issued in the first
place. And I shall not do so.
The respondent's preliminary point can be dealt with
briefly This was that the applicant had not exhausted the domestic
existing in the University's administrative machinery
and available to her before bringing her application to Court.
The subjects fall under two departments (History and
Theology), so there were two heads of department and the Dean of the
available to go to, followed by the Pro-Vice Chancellor and
the Senate. It appears from the applicant's two letters in August
referred to above as "NUL4" and "NUL 5(2)",
that she did in fact write to her departmental heads and the faculty
dean. But she certainly did not approach the Pro-Vice Chancellor or
Senate. Mr. Addy submitted that she could not have done so because
would have taken so long and time was of the essence From the
applicant's affidavits it would appear that she seemed to think
she had to be allowed to graduate with her present co-students at all
costs But this is not so. There is no such necessity.
students fail or drop out on the way. Others have to repeat subjects
or sit for supplementary papers and so may graduate later.
/She could . .
She could be one of these. There is no deadline
In any case she is merely one of many students and all
of them, without exception, when they were admitted to the University
themselves to the discipline and regulations of the
University There are provided channels for requests and complaints
and she should
have followed them just as anyone else there is
required to do.
If any student is going to be allowed to say,"I
think that I'm a special case so I will not follow the laid down
go to Court instead," then the Court will be
inundated with applications by disgruntled students who want court
who is to teach them, or what subjects they can
take, or what marks or grades they should receive and so on. The
whole idea is absurd
and clearly it cannot be permitted.
From what has been revealed so far it is clear that the
applicant could have obtained the relevant information from her
or faculty head and, in fact, she eventually did so. If
she had not been successful then she should have gone to the Pro-Vice
If this was likely to delay her programme of studies
then she could approach her Faculty dean and her sponsors so that
arrangements could be made. The answer to the preliminary
point is that the applicant had not exhausted all her domestic
and there was no need for her to come to Court, even if it
had been the proper venue for her complaint, which it was not
In the affidavit of the acting Registrar, Mr. Buku, he
pointed out that the applicant's results could not have
been released in August, as they ought to have been, due
to a muddle and confusion over locating and marking her project work
by the departure to another university of her supervisor,
Professor Skhakhane. In addition, the Registrar claimed that the
had not left a contact address during the vacation.
The applicant, in her affidavit, stated that she
remained on the campus at that time. The two letters she wrote
and "NUL 5(2)") are headed "c/o
N.U L. Roma" and her Student Registration Form ("NUL8")
shows her as
a citizen of R.S.A. and her "full address for
correspondence" as "National University of Lesotho."
Clearly this could all be rather confusing She must
have had some sort of address outside the University and it should
supplied. If she was staying on the campus during a
particular vacation then her above letters and the registration form
have indicated this. It was not enough to put at the top of
the letters to the faculty head just "NUL". They would
that she was a student there but would not be likely
automatically to take it to mean that she was staying on the campus
have said this in her letter so as to make it clear just
how and where she could be contacted Mrs Mochaba, the Humanities
tutor, in her affidavit ("NUL6") affirmed that they
could not locate her as she had left no stated forwarding address.
have no doubt that this failure on her part contributed largely to
the delay in dealing with her complaints and communicating her
results to her.
/Turning now .
Turning now to the Court Order of 8 October, which is
the same as the prayers in the original Notice of Motion (above), the
prayer and order concerns the release of the applicant's
examination results and, as we have seen, this was done.
The second prayer and order was for a direction to
register the applicant provisionally as a final year (4th year). The
had no right or entitlement to demand such registration.
She can only be considered as eligible or ineligible in that respect.
any case, as the respondent pointed out, her current results
required that she must sit for a supplementary paper in H311 in
December 1987 Until she has sat for it and passed it she is not
eligible for registration as a fourth year student, and she should
have known this
The third prayer and order was that she was "entitled"
to supplement and that the respondent should be "directed"
to administer a supplementary examination But there was no such
entitlement. The applicant had been given an 'E' in a paper and was
therefore only eligible to sit for a supplementary, the decision as
to whether or not she could do so was for the respondent Regulation
10.65 states that "supplementary assessment may be allowed in a
course for which an 'E' has been awarded " This may be
or written examination. The Court cannot be asked to order
examinations to be set and marked. Such an order would obviously
improper and indeed unenforceable In the event the respondent has
already allowed her to sit for a supplementary in December.
/The fourth ...
The fourth prayer and order was a direction that the
respondent should bear the full cost of the applicant's registration,
boarding etc for the 1987-88 academic year if she is unable
to secure a scholarship from her sponsors One obvious danger in
such an order would be a strong likelihood that the applicant
would not bother to chase after her sponsors when she already had all
her university expenses provided for by the Court Order. Clearly such
a situation should not be encouraged.
Both Mr Addy for the applicant and Mr. Matsau for the
respondent agreed that this prayer was in fact an allegation of
the part of the respondent and that it should therefore
go to trial. If this is so then I cannot help wondering why Mr Addy
it in the Notice of Motion. An action for damages in
negligence must be brought by summons as he should have known.
university would be expected to oppose and defend such
a demand which it might very well consider to be outrageous and
There was thus no justification for including it in
the application, nor, in the circumstances, would I be prepared to
to be tried
In conclusion, this application was, in my opinion,
ill-conceived, badly drafted and should never have been brought.
are dissatisfied with their examination results, or
the way they are being taught, or why they have not been awarded a
or diploma, or with other matters of academic administration
and decision, should take their complaints to the proper academic
in charge They should not bring such matters
/to Court. ..
to Court. That is not what the courts are for and suits
or applications of this sort will not be entertained by the Court.
If it is a matter of an alleged illegality, for
instance, in the dismissal of a member of staff or the sending down
of a student then
there might sometimes be a cause to bring to court.
But I want to make it quite clear that this Court is not going to
purely academic matters at an educational institute.
The University has its own regulations which both staff and students
by, or take the consequences, if they wish to belong to or
attend such an institution. Students cannot be encouraged to come
to Court with so-called urgent applications, or any other
type of action, in an attempt to persuade the Court to overrule their
and faculty heads or other academic authorities in academic
The Rule is discharged and these applications are
dismissed with costs
P. A. P J. ALLEN JUDGE
5th November, 1987
Mr Addy for the applicant Mr Matsau for the
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