IN THE HIGH COURT OF LESOTHO
In the matter between:
THE ADJUDICATOR (MRS. MAPUTSOE N.O.) 1st
THE CHAIR, TEACHING SERVICE COMMISSION 2nd
THE ATTORNEY GENERAL 3rd
ST. JAMES ANGLICAN HIGH SCHOOL 4th
Delivered by the Honourable Mr. Justice G. N. MofoloOn
the 18th day of March, 2005
This case came to this court by way of review the
applicant havingapplied for an order in the following terms:-1.
Dispensing with the rules relating to notice and service of
processowing to urgency hereof.
2. That a rule nisi issue and is hereby issued
calling uponrespondents to show cause, if any, why:-(a) First
and second respondents shall not remit a record ofproceedings in
respect of disciplinary proceedings heldagainst applicant for
breach of discipline to the Registrar ofthis court for review and
within 3 days of receipt of thisorder.
above shall not be reviewed and set aside.
(c) Applicant shall not be re-instated to his teaching
post at St.James Anglican High School.
(d)Respondents shall not be ordered to pay costs in the
(e) Applicant shall not be granted further and/or
alternativerelief as the court day deem fit.
3. That prayer 2(a) operate with immediate effect as an
It would seem that interim relief was granted on 24
December,2004and made returnable on 4 January, 1995 when the
application wasargued before me on 14 January, 2005. Mr.
Phoofolo for the 4th respondentappears to have
taken a point in limine namely that applicant did not
exhaustlocal remedies namely that points which the applicant
relies upon were notargued in courts below. To this Mr. Teele,
for the applicant has retorted thatthere is no way such points
could have been argued for despite demand, therecord was not made
available having been made available only on thismatter coming on
review to this court.
This court is of the view that throughout the only point
in contentionwas whether the entire proceedings were appropriate
other factors having
come in to buttress
the contention. Applicant having been found guilty bythe
Adjudicator appealed to the Teaching Service Commission which
threwout applicants appeal. I am of the view that in this
respect applicantexhausted the requirements complained of.
Accordingly the point in limine does not succeed.
On 14 January, as indicated above, the court having also
beenaddressed on merits set aside judgments of both the Teaching
ServiceCommission and the Adjudicator.
In setting aside the Teaching Service Commission
finding, the courtwas of the view that a proper judgment to have
been entered by theTeaching Service Commission was one setting
aside the judgment of theAdjudicator and the court indicated its
reasons would follow. Here now aremy reason for judgment.
The applicant was charged of misconduct on following
allegations:-1. Misuse of your position as Deputy Head by
demanding andaccepting bribery.
Fraudulent use of
school order book and stamp on privatebusiness.
Your outstanding debt of M9438.00 to the school is
You are chronically unpunctual and this has resulted
into abusivelanguage to the Principal.
Applicant had, in terms of law, responded to the charges
by his letterof 3 March, 2004. The matter was then set down for
hearing on 25 June,2004 and the applicant knew and was aware of
the date of hearing.According to the record of proceedings, it
would appear a certain Mr. Ratautelephoned the Adjudicators
secretary to have the matter postponed to alater date.
Predictably the Adjudicator refused postponement for the reasonthat
the application was not made before me. Of course the
Adjudicatoracted within her rights. The habit of postponing cases
by telephone isundesirable and no strictures can lay bare the
lack of respect for courtscontained in such an appalling approach
to courts of law. For there to be apostponement a party desiring
postponement is to inform the other party inadvance that he
intends postponing a matter. Armed with this informationboth
parties are to appear before the presiding Officer to
requestpostponement. I say request because a Presiding Officer is
not a rubberstamp and may for good cause refuse the application.
In the instant
learned Adjudicator was entitled to refuse the applicationand
proceed with the case as she did.
In refusing the application for postponement, amongst
other thingsthe Adjudicator pointed out that the defaulter
received his charge on time.Rightly so because section 51 of
Education (Amendment) Act, 1996 reads:-(2)
The Chairman who signed the charge sheet shall cause to
beserved upon the teacher charged a copy to the Commission.
a notification of the charge; and
a written explanation of the breach of discipline
thatconstitutes the charge
(3) The notification of the charge shall state that
the teachercharged may submit to the Chairman, with a copy to
theCommission, within a period specified in the notification
(notbeing a period less than 14 days), a written admission or
denialof the charge.
As against original charges, the following new charges
against the applicant:
You are hereby charged with misconduct in terms of
section 48(g) of the Lesotho Education Act in that you
fraudulently used theorder book and stamp to buy computers on the
09.01.2004 fromone L. Motebang.
(i) You are hereby charged with contravention of
section 48 (a) ofthe Education Act, 1995 in that you have
repeatedly failedand omitted to report for duty on time as
against both thePrincipals and school Boards orders on the
05.04.2004(d)16.04.2004(e) 21.04.2004 and many more.
(ii) You have neglected your work so much that
you refused togive a report concerning the night-watchman on
You are hereby charged with contravention of section
45 (c) readwith section 48(a) Education Act, 1995 in that you
failed to teacha form B3class from 23.03.2004 to
You are hereby charged with misconduct in terms of
EducationAct, 1995 section 48 (g) in that you used abusive
language to thePrincipal on the 05.02.2004.
It is common cause that these charges were not served on
theapplicant allowing him to respond to them as the law quoted
above requires.Mr. Phoofolo has attempted to persuade the
court that at least one charge isrepeated in the new charges.
This court is of the view that the new charges
have replaced the
original charges, new charges being different fromoriginal
charges in content and form and new charges being explicit
anddetailed in particularity.
In any event, the law requires that charges preferred
against a teachermust be served on him and allow him to respond.
This court does not knowhow, were charges served on the
applicant, he would have responded. I amalso of the view that,
irrespective of whether applicant attended his trial ornot,
charges preferred against him not having been served on him
andallowed to respond thereon, the trial was premature. Not only
this, Count 2(i) has to do with unpunctuality and not absenteeism
which is covered bysection 48 (h) of the Education Act, 1995. And
yet applicant was convictedof absenteeism, a clearly more serious
breach than unpunctuality.
This is to confirm that I did, on 14 January, 2005 set
asideproceedings in respect of which applicant was found guilty
of disciplinarybreach and ordered that applicant be reinstated in
his post the while freshproceedings against him were to be
instituted before another Adjudicator.
As to costs, this court is much indebted to Mr.
Phoofolo and Mr.
in the end, conceded that the proceedings were irregular.Accordingly
there will be no order as to costs.
Another small thing. Education (Amendment) Act, 1996 is
badlydrafted. Section 42 is Breach of Discipline and section 43
and 52 of the Principal Act are repealed and then
follows section 51 and
immediately after section 43, sections 51 and 52 being
followed bysection 44-45 after which is section 54 followed by
sections 46, 57, 47 andthen 58, 48, 59, 49-56 and lastly is 78.
There is so much interspersion ofsections that a systematic,
numerical order is called for.
G. N. MOFOLOJUDGE
For the Applicants: Mr.
Mr. Phoofolo and Mr. Letsie
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