IN THE HIGH COURT OF LESOTHO In the Matter
TEYATEYANENG SECONDARY SCHOOL
ASSOCIATION ... 1st Applicant
ESAIA THITE 2nd Applicant
LESOTHO EVANGELICAL CHURCH 1st Respondent
NONYANA LEBEKO......... 2nd Respondent
COMMISSIONER OF LANDS 3rd Respondent
Delivered by the Hon. Mr. Justice B.K. Molai on the
20th day of February, 1987.
In an application wherein the applicants have obtained
a lengthy rule nisi the effect of which is to give back
the administration of Teyateyaneng Secondary School to the
Association and ordering the third Res-pondent to
issue a lease in respect of a school site, Plot No. 19213-001, to the
Association the 1st and the 2nd Respondents
have raised points in limine.
The question of who owns the Teyateyaneng Secondary
School and, therefore, entitled to administer it has been the subject
court decisions and in the interest of clarity,it is,
perhaps, helpful to set out, in a nut
shell, the history thereof.
On 21st January, 1985, the Lesotho Evangelical Church as
applicant, obtained against Esaia Thite and the Standard Bank PLC, as
and 2nd Respondents, respectively, a rule nisi firstly calling
upon Esaia Thite to show cause why he shall not be interdicted from
having anything to do with the running and administration of
Teyateyaneng Secondary School; and secondly calling upon the
2/ Standard Bank .......
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Standard Bank PLC to show cause why it shall not be
interdicted from paying any money, out of the Bank account kept in
the name of
the said Secondary school, to Esaia Thite and/or his
Although the Standard Bank PLC did not oppose
confirmation of the rule, Esaia Thite did. The rule was, however,
confirmed on 25th
March, 1985. Esaia Thite was unhappy with the
decision against which he appealed to the Court of Appeal.
On 25th July, 1985, the Court of Appeal sat to hear the
appeal when it was ordered, inter alia, that the agreement between
filed of record be made an order of the court. The terms
of that agreement read, in part:
"The Order of the court below is set aside and the
matter 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
of the issues raised in the Application.
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The disputes of fact relate to, and the issues to be
determined by the High Court are :-
who is entitled to run and administerthe school at
Teyateyaneng known as"T.Y. L.E.C. Secondary School"
or"Teyateyaneng Secondary School" orTeyateyaneng
F.P.A. High School."
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.
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."
3/ As directed
As directed by the Court of Appeal, the High
Court heard oral evidence and on 17th February, 1986.
again, confirmed the rule nisi in favour of the
Applicant church. Esaia Thite was again
dissatisfiedwith the decision against which he once more
appealedto the Court of Appeal.
In July,1986 the Court of Appeal again heard the appeal
and took the view that the High Court did not fully apply its mind to
terms of reference under which the matter had been remitted. The
Court of Appeal itself then proceeded to consider the oral evidence
adduced before the court a quo and concluded, inter alia:
"In the light of the above considerations I am
unable to find that the Respondent, as applicant in the interdict
has discharged the onus resting upon it. Indeed the
considerations mentioned above indicate that the probabilities point
in the opposite."
Notwithstanding this decision of the Court of Appeal, it
would appear that the Lesotho Evangelical Church continued to run and
the school, the subject matter of this case, and Mr.
Jeremiah Nonyaha Lebeko, the Principal thereof, insisted that his
as a teacher at the school, was with the church and
not the Founders/Parents Association. The problem was compounded by
that the Commissioner of Lands had issued or was in
the process of issuing a lease, for the school site, in the name of
Consequently, the applicants instituted against the
Repondents the present application proceedings in which they prayed
for a rule
nisi as aforesaid. I granted the rule on 3rd October 1986.
The 1st and the 2nd Respondents intimated their intention to oppose
of the rule. On behalf of the applicant the founding
affidavits were sworn to and filed by the 2nd applicant himself,
and W.M. Tsotsi. Tello Mongangane also purported to
file a founding affidavit which was, however, not sworn to and can,
be ignored. The second Respondent and one Lebeko Lebeko
deposed to, and filed the answering affidavits.
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A Replying affidavit was also filed.
The 3rd Respondent filed no notice of intention to
oppose confirmation of the Rule and it is presumed that he will abide
decision is arrived at by the court.
The points in limine were firstly that 1st
Applicant being a registered association, had filed no resolution.
There was therefore, no indication that
it intended to institute
these proceedings or that the 2nd applicant was authorised so to do.
Secondly the applicants had not shown
that they had a clear right in
the school. The proceedings were for those reasons defective.
As regards the first point in limine I must say
where proceedings are instituted on behalf of a legal
person, such as the 1st Applicant who is admittedly a registered
it is common practice to annex an extract of the minutes
of a meeting of the executive committee indicating that it has been
to bring the proceedings to court and someone authorised to
sign the necessary documents. In the instant case it is common cause
that no such extract was annexed to the motion paper that instituted
It is, however, to be observed that in his founding
affidavit the 2nd applicant has clearly stated on oath that he is not
his personal capacity but as a chairman representing the
1st applicant in these proceedings. The notice of motion itself
to emanate from a firm of attorneys acting on behalf of the
1st and the 2nd applicants. Indeed, Dr. Tsotsi, a practising
of this court, has deposed to an affidavit in which he
categorically avers, inter alia, that he is the attorney of
the record for the applicants.
It seems to me that the avernments on oath by both the
2nd applicant and attorney Tsotsi that they are acting on behalf of
applicant in those proceedings
have the necessary implication that they have been
authorised so to do by the 1st applicant vide Thorne v. Retail
Trades Inquiry Bureau Ltd. and Another 1936
T.P.D. 310 at p. 314 where it was said:
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" an allegation of agency is an
allegation that the agent is authorisedto make the
I conceed that it would have been wiser for the
applicants to have filed the resolution but to say failure to do so,
in the circumstances
of the present case, justifies the upholding of
the first point in limine would, in my view, be stretching
formality too far.
Coming now to the second point in limine it seems
to me that the conclusion reached in the above cited decision of the
Court of Appeal was, in effect, that T.Y. Secondary
School and the
administration thereof belonged not to the Respondent Church but to
the 2nd Applicant who is the Chairman of, and
represents, the 1st
Applicant. Assuming the correctness of this view, the Respondents
cannot, therefore, be heard to say the applicants
have not shown that
they have a clear right in the school.
It may be mentioned that there is another application
CIV/APN/335/86 in which the applicants have moved the Court for an
order, inter alia, committing the 2nd Respondent for failing
to comply with the Court Order granted in the present application.
It was argued on behalf
of the 2nd Respondent that as the order in
CIV/APN/335/86 is based on the defective proceedings in
CIV/APN/318/86 it was also defective.
I am not convinced that the proceedings in
CIV/APN/318/86 are defective. That being so it stands to reason that
I am unable to agree
with this argument.
From the foregoing, it is obvious that the view that I
take is that the points raised in limine ought not to succeed
and they are accordingly dismissed with costs.
J U D G E. 20th February, 1987. For
Applicant : Mr. Edeling For Respondent : Mr. Matsau
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