IN THE HIGH COURT OF LESOTHO In the matter
'MALIKELELI MASIA (Duly assisted by Her husband 1st
Applicant 'MATEBELLO KONANE (Duly assisted by her husband 2nd
JOHN (DULY ASSISTED BY HER HUSBAND) 3rd
CHARLES MPHAOLOLI 1st Respondent
'MALIMPHO KOSIE (Duly assisted by her husband) 2nd
BOIPELETSO MOHAPELOA 3rd Respondent
MASIMONE MAKHELE (Duly assisted by her husband) 4th
LERATO KHAKA 5th Respondent
MATTHIAS ADOKAR 6th Respondent
VITALIS MACHAI 7th Respondent
BORE MOTSAMAI 8th Respondent
KAODI (Duly assisted by her husband) 9th Respondent
BEN NOTSI 10th Respondent
ENGLISH MEDIUM SCHOOL 11th Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola
on the 30th day of November. 1993.
This is an application for an order in the following
1. That a rule nisi do hereby issue calling upon the
Respondents to show cause, if any, on a date to be determined by this
(a) The normal periods of service prescribed by the
rules of Court shall not be dispensed with on
the basis of urgency of this matter.
Second to Tenth Respondents shallnot be
interdicted fromexercising the functions of theBoard of
Directors of the school.
First Respondent shall not beinterdicted from
exercising thefunctions of the Board of theDirectors of the
school withoutdue authorization and permissionof the lawful
Board of the schoolin terms of the school'sconstitution.
First to Tenth Respondents shallnot be interdicted
from amendingand\or replacing the presentconstitution of
the school or inany way interfering with thesmooth
running of the schoolpending determination of
The Board of Directors of theschool that was
exercisingfunctions as such prior to the24th October, 1993
shall not bedeclared as the lawful Board ofthe school.
The election of Second to TenthRespondents as new
members of theBoard of Directors of the schoolshall not be
declared null andvoid.
First to Tenth Respondents shallnot be ordered to
pay the costshereof.
(h) Applicants shall not be granted any further and\or
2. That Rules 1 (b) (c) and (d) should operate with
immediate effect as temporary interdicts.
On the 29th October, 1993 the applicants were ordered to
serve the respondents and the application was set down for hearing on
1st November, 1993. Several postponements followed until the
matter was argued on the 4th and the 5th November, 1993 when judgment
It is common cause that the eleventh respondent (the
school) was established in March, 1992. In terms of Article 4 of the
of the school the proprietorship of the school was
vested in Board of Directors which included the founders of the
the first applicant, the first and second
respondents. In terms of Article 5 (b) of the constitution of the
school the founders of
the school were made permanent members of the
Board of Directors of the school.
On the 17th May, 1993 the Board of Management of the
school wrote a letter to the Registrar of Deeds informing her of the
made on the 14th May, 1993 amending Article 4 of the
constitution of the school. The letter reads as follows:
" May 17, 1993
The Registrar of Deeds, The Law Office P.O. Box 33,
Following a meeting of Board of Management held on
14\5\93, at Unity English Medium School, site No.523, Pope John Paul
II Road, it
was unanimously resolved that, "Section Four (4) of
the School Constitution No.92\26, of which a copy is in your office,
The amendment to be made is to read as follows:
4. PROPRIETORSHIP; "Unity English Medium School
The aforesaid amendment will differ from the initial
endorsement which read: "the proprietorship of the school is
vested in the
Board of Directors with founders inclusive)"
We shall be grateful if the contents of this letter will
be explicit and this matter be treated accordingly.
C. MPHAOLOLI (Mr) (Sad). Lizzy John BMasiaChairman of Board Secretary of Board Treasurer
It is to be noted that that resolution to amend Article
4 of the constitution was reached by a unanimous vote and that the
the first respondent and the third respondent signed
the letter to the Registrar of Deeds (Annexure "MM2"). It
that at the moment the school is now a community school i.e.
its proprietorship vests in the community and not in "the Board
of Directors with founders inclusive." As far as I can establish
from the averments in the affidavits of the parties the applicants
are not challenging the amendment of Article 4 of the constitution
but they are challenging the constitutinality of the events that
followed the conversion of the school into a community school.
The first applicant alleges that on the 18th October,
1993 the first respondent called a special parents' meeting for the
1993. The letter invited the parents to, inter alia,
elect the Board of Directors and the committee because the first
alleged that the present Board was not elected but
nominated. The first applicant alleges that the special meeting at
which a new
Board of Directors was elected was unconstitutional in
that it was not held in terms of Article 10 (b) which provides that
of the meeting shall be sent to all school parents two (2)
weeks before the meeting. The period of notice given to the parents
only six (6) days.
She avers that the meeting was also unconstitutional in
that Article 11 (a) requires that such a meeting should be called
with the Head of the school. In this respect she
refers to the affidavit of the third respondent who confirms that as
Head of the
school she was not consulted.
All the applicants attended the parents' meeting of the
24th October, 1993. They raised their objection that the meeting was
but they were ignored. The new Board of Directors
was elected by the parents.
The questions to be decided by the Court are: what was
the effect on the constitution of changing the proprietorship of the
school to a community school? Did that constitution
which was meant for a private school continue to have full effect
after the school
became a fully fledged community school? It seems to
me that the answer must be that as soon as the amendment was made to
that the school was a community school the existing
constitution became ineffectual and irrelevant. The first respondent
right thing to call the parents' meeting to elect a new Board
who would draft a new constitution.
I take the view that the constitution which was meant
for a private school could no longer be suitable after the unanimous
that the proprietorship of the school then vested in the
school (community). The process of converting the school into a
school cannot be done by a single act of informing the
Registrar of Deeds to record the change in her records and stop
is a continuing process which involved, as the next step,
the election of the new Board of Directors who would draft a new
for the new school. The applicants cannot be heard to
say that after their unanimous decision that the school should be
a community school there should ' be a stalemate as to how
that should be done.
The first respondent is the Manager of the school and
Chairman of the Board of Directors. As such he was under an
obligation to implement
the decision of the Board to change the
school into a fully fledged community school. During the
transitional period no vacuum could be allowed. The Management
had to carry out the job of converting the school into a
community school according to the unanimous decision.
It is interesting to note that in paragraph 6 of her
replying affidavit the first applicant is now saying that in terms of
5 (b) of the constitution the amendment which was made by a
unanimous assent is invalid because there was no compliance with the
provisions of Article 16 of the constitution. It will be seen that
she was a party to that unanimous assent. It seems to me that
now estopped from turning round.
It is true that the constitution of an association
together with all rules and regulations collectively constitute a
is entered into by the members (See EX Parte United
Party Club 1930 W.L.D. 277 at p. 280). This contract is the crucial
the existence of an association. It not only determines the
nature and scope of the associations existence and activities, but
where necessary to do so, prescribes and demarcates the powers
of, inter alia, the executive committee, secretary and general
expresses and regulates the rights of members and provides
for certain procedural aspects (See The Law of South Africa, Vol 1
It was in the light of these overwhelming powers of the
constitution of an association or society that, apparently, Mrs
for the respondents, resorted to the principle of
"unanimous assent" in company law cases. In Cilliers,
Benade & De
Villiers in Company Law, 3rd edition at p. 222 the
learned authors write that:
"Despite the general rule that corporate decisions
are to be taken at properly constituted meetings of the company and
obtaining the separately given individual assent of members, a
long line of South African and English decisions recognize that a
company can perform certain acts validly without any meeting being
held, provided that all members were fully aware of what was being
done and unanimously assented thereto'
H.R. Hahlo - South African Company Law through the cases
- Third Edition page 317 who states that:
"In a number of cases English and South African
Courts have treated informal, unanimous assent of the shareholders as
of a formal resolution, passed at a properly convened
In the Fourth Edition of the same book published 7 years
later in 1984, the learned author writes: (Page 311)
"It is settled law by now that any intra vires act
which can be authorised by the company in general
meeting can also be authorised by the informal unanimous assent of
all the shareholders."
She referred to the English case of Parker & Cooper
Reading (1926)Ch 975, the directors of a company had
created a debenture and proceedings were commenced to establish that
and the resolution which authorised its issue and the
appointment of a certain receiver under it were invalid. Astbury J.
to earlier decisions and himself expressed the view at 984
at 984 that:
"Now the view I take is that where the
is intra vires and honest, and especially.
if it is for the benefit of the company, it cannot be
upset if the assent of all the corporators is given to it. I do not
matters in the least whether the assent is given at
different times or simultaneously;.
In another English case much later, In re Bailey, Hay &
Co Ltd (1971) 1 WLR, (1971 3 All ER 683 notices for
an extraordinary general meeting to pass resolutions for
the voluntary winding up of the company and the appointment of a
were issued one day short of the' required period. In
holding the defect to have been cured by the unanimous agreement of
despite the fact that three of the corporators did
not vote in favour of the resolution, Brightman J. expresses the view
true purport of the acts of such corporators cannot be
judged exclusively on what they did or did not do on the date of the
He pointed out that by standing by and not protesting when
the resolution was being passed and permitting all persons concerned
act for years on the basis that the resolution had been duly
passed, it was idle for them to contend that they did not assent to
the purported resolution.
In Andrews v. Mitchell 1905, A.C. at p. 80 Lord Halsbury
"My Lords, in this case I feel, as I have no doubt
all your Lordships do, the extreme inconvenience of allowing these
among friendly societies and their members to come into a
Court of Law. I feel the force of what Mr. Lawrence said, namely,
we must not insist upon a too minute observance of the
regularity of forms among persons who naturally by their education or
opportunities cannot be supposed to be very familiar with
legal procedure, and may accordingly make slips in what is mere
of form without any interference with the substance of their
decisions. I should be anxious myself, as I have no doubt all your
would, to give every effect to their decisions..."
I agree with Mrs Makara that the principles enunciated
company law cases referred to above must apply to the present case.
When the school was started in 1992 it is very clear that
the intention of the parties was that it should be a
community school. Their intention appears very clearly in Annexure
to the opposing affidavit which is a form used in
applications to establish a new school in terms of Rules 5 and 7 of
Rules, 1965. In that application the founders indicated
"I have to inform you that it is the desire of
"Community" "Board of Directors"
establish a new primary school".
However in the constitution the word "Community"
out and the Ministry of Education came to the conclusion
that the school was a private school despite the obvious intention of
founders that they intended that the school should be a community
school. On the 14th May, 1993 they amended the constitution so
it could reflect their original intention. The decision to amend the
constitution was reached by a unanimous assent.
I think that, as Lord Helsbury pointed out in Andrea's
case - supra, we must not insist upon a too minute observance of the
of forme among people who are not familiar with legal
procedures. In his opposing affidavit the first respondent avers that
from the beginning their intention was that the school should
be a community school. This is confirmed by their
unanimous decision on the 14th May, 1993.
In the result the application is dismissed with costs,
J.L. KHEOLA JUDGE
30th November, 1993.
For Applicants - Mr. Malebanye For Respondents -
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