CIV/APN/95/05
IN THE HIGH COURT OF LESOTHO
In the matter between:
RAMATEKANE SENEKANE Applicant
VS
LEROTHOLI POLYTECHNIC First Respondent
CHAIR MAN OF COUNCIL
LEROTHOLI POLYTECHNIC Second Respondent
REASONS FOR JUDGMENT
Given by Mr Justice Maqutu on the 4th April 2005
On the 2nd March 2005 applicants brought an urgent application on the following terms:
That rules governing periods and mode of service be dispensed with on grounds of urgency.
That a rule nisi be issued calling upon the Respondent to show cause (if any)
Why the decision of the Council of the 1st Respondent of the 1st February, 2005 shall not be set aside, reviewed or corrected.
Reviewing, setting aside and Quashing the proceedings of the disciplinary hearing of the Respondent as irregular.
Ordering the 2nd Respondent to dispatch the record of proceedings to the above Honourable Court within 7 days on the grounds of urgency and to notify the applicants that he has done so.
Ordering that prayer 2(c) should operate with immediate effect.
Application was granted in terms of prayers 1,2 (c) and 3 and a rule nisi was issued returnable on the 21st March 2005. This was extended to 30th March 2005 when the matter was argued before me. I was satisfied that the matter was urgent and made the following order at the end of the argument of the parties.
Court: The decision of the council on pushment is set aside on the grounds that second applicant was not heard. The recommendation of the students' Disciplinary Committee of suspension of second applicant from hostels for a period of six months from January to June 2005 plus hard labour on identified surroundings from time to time is made the punishment that second applicant will have to incur. Reasons will be filed later.
The court was not addressed on costs consequently it became necessary to call upon the parties to address me on that issue on the 4th April 2004 and the Registrar was directed to inform the parties accordingly.
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Mr Lichaba for respondent (on points in Limine) abandoned the objection to the citing of respondents and concentrated on the issue of delay in bringing this application. It became clear to me that a delay of less than a month between the 4th February 2005 and the 2nd March 2005 when the application was filed was not at all unreasonable. Consequently respondent that point was overruled.
The second applicant, a third year student was charged disciplinarily of inciting first year students to ill- treat and assault Mapitse Mapitse and Mokoma Ramakoloi both of whom were first year students.
What is clear is that second applicant from respondent's LP4 (a) LP4 (b), LP4 (c) and LP4 (d) made four conflicting statements. In some of them he admitted liability, in others he did not. They have according to second to applicant been written on the advice of the Director of the Technikom, Director Student Affairs. At page 78 of the paginated record second applicant among other things said:
"I have found a need to tell the truth after the Director of the school and the Director of student Affairs advised me to tell the truth. I admit I am totally involved in the events above-mentioned."
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When dealing with issues such as these a student needs parental involvement so that he can be properly advised. I am not satisfied that Statute 20 of the Lerotholi Polytechnic STATUTES 1997 was complied with. It provides:
"Service shall be deemed to have been effected by properly addressing and posting a letter containing such notice or other documents under certificate of posting or registered post, and to have been effected in the case of a notice of meeting at the expiration of seven days after the letter has been delivered in the post office."
I am satisfied (as Miss Tau argued) that the or in the Statute is in fact an of in the context in which it appears in the statute. Consequently the or in statute 20 is a typographical error. It was an irregularity not to ensure that the letter reached second applicant's parents. To make matters worse the hearing was to be on the 10 th December 2004 and second applicant was supposed to answer the allegations levelled against him by the 9th December 2004. This would not give second applicant's parents time to reach second applicant, because they would in terms of Statute 20 be deemed to have received the letter on the 9th December 2004.
However in the respondents' favour is the fact that second applicant was over 23 years old. Consequently he was not a minor. He could handle his own affairs - indeed it could be argued that being an adult he should have
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sought the aid of his parents on his own initiative. This in my view mitigates the seriousness of the irregularity. - Had second applicant been a minor, the issue would much more serious. Nevertheless the good faith of respondents is called into question when respondent's "LP4(b) shows clearly that respondents were given the cell-phones of second applicant's father and mother but they did not phone them.
The record of proceedings is not an accurate record - it is not a record at all. These notes violate Regulation 12.5 of the Lerotholi Polytechnic Student Handbook which provides that "the Registrar shall keep accurate record of proceedings." The accused was not asked to plead. Regulation 13.5 was also not followed which provides:
"Each side shall be given an opportunity to present its case at the hearing. Which will be called for that purpose"
None of the parties presented its case and witnesses were not cross-examined.
There is no evidence that statements of witnesses were (before hearing) served on the accused and if so when. Mr Lichaba for respondents said "LP4 (a) - (d)" were an answer to those statements which according to
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respondents were served. The court called for those statements, it was clear that they did not correspond to "LP4 (a) - (d)." Because it was not even stated when the statements were served. Second applicant was not on the face of the papers given the seven days provided by the regulations to respond. If he was he was given time that was too short, because the notice of hearing containing the charge is dated 2nd December 2004 and the hearing was to be on the 10th December 2004.
The reports that second applicant wrote marked "LP4 (a) - (c)" are investigatory not for preparation for disciplinary proceedings. The letter "LP4(d)" is the only one that answers that the charge and it states:
Director of Students Affairs
Lerotholi Polytechnic
P.O.Box 16 Maseru
07/December 2004
Dear Sir
I am writing this letter to reply to the letter which informed me of what I am accused of.
I am saying that I did not assault anybody even to ill-treat anybody. Moreover, I accept that I did make false identification of oneself. Furthermore, I do not know how I incited other first year students to violate regulations governing students. Therefore I do not know whether 1 am innocent or guilty in a previous point I stated.
Makhemi Senekane
M3
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It cannot be true that accused was asked to present his case or plead. The record does not show this. What the record shows is that the accused was interrogated and answers written. Towards the end of what is recorded as coming from him the following is written:
"admitted spearheading the plan to ill-treat other first year students - they met in his room to decide how they will defend themselves at DSA's office. Pleaded guilty but not for assault."
Miss Tau argued that the record backs up second respondents that the complainants did not present their case and were not cross examined in breach of Statute 19.6 which provides:
"The Students' Disciplinary Committee shall provide an opportunity to such student for hearing. The student shall be free to appear in person and/or through a representative of his choice and shall have a right to cross-examine witnesses and examine the documents being used against him for his defence"
Mr Lichaba for respondents conceded these defects of the record and breach of Statute 19.6 and other rules relating to disciplinary hearing in the student handbook but said Statute 19.7 allowed the student's Disciplinary Committe a lot of latitude because it provides:
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"The Students' Disciplinary Committee shall have a right to establish its own procedure."
Consequently Mr Lichaba argued the court should concern itself with the substance of natural justice and not just the letter of the Statutes and Regulations of the Lerotholi Polytechnic found in the students handbook. In the final analysis the court should concern itself with substantive prejudice rather than breach of statutes and Regulations and the minor prejudice that failure to follow them might have caused.
Miss Tau (for applicants) further complained that accused was not head when the recommended sentence was altered and a severe one expulsion was imposed Mr Lichaba for respondents argued that the Statute and the rules did not provide for such an appearance.
It is clear from the record that second applicant was not informed of his guilt and called upon to say anything in terms of Rule 14 (1) (f). The Students Disciplinary Committee had recommended that second applicant should be suspended from residing in the halls of residence for 6 months with hard labour. This recommendation was passed to Council for a final decision.
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The recommendation was not accepted, and the Council without hearing second respondent at the instigation of the Director decided to expel second respondent from Lerotholi Polytechnic. The failure to hear and take into account second applicant's submissions before punishment contrary to Rule 14 (1) (f) becomes highly prejudicial. If there were on record second applicants submissions and explanation before punishment was imposed, the prejudice would have been mitigated. The council could be deemed to have heard him even if not directly - but at least it could be deemed to have read his submissions or explanation.
To make matters worse the council does not deny that it associated second applicant in a general way with the spread of aids, drunkenness and leaving the premises. It merely says, it said this among other things. This was clearly not the case in the offence he was charged with and convicted.
The Regulations in the Student's Handbook are part and parcel of the contract the student has with the polytechnic. While the Lerotholi Polytechnic is bound by its statutes and Rules and the formal standards contained therein, the court in reviewing proceedings must not always look for perfection. However ignoring the Statutes and Rules would lead to
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chaos because those rules were made to see that justice is done in an open, clear and transparent manner. As Mahomed P said in Koatsa v National University of Lesotho 1991-1992 LLR & LB 163 at 168:
"The findings of those organs will not be disturbed if they are arrived at honestly and they were findings which a reasonable man properly applying his mind could honestly have come."
In the above case of Koatsa the Court of Appeal found the respondent had not been treated fairly as he had a legitimate expectation to be, in terms of the rules that certain procedures would be followed. In other words rules of natural justice should be applied. Applicant was heard albeit imperfectly. He admitted guilt. He had incited first year students to ill-treat other first year students. The first year students had in fact attacked the other students who had defended themselves - thereby causing one of their tormentors to be injured.
In dealing with educational institutions in Hamata & Another v Chariperson Penisula Technikon IDC 2000 SA (4) SA 621 Hlophe JP and Brand J at page 639H said:
"An administrative tribunal is not a court of law. It therefore cannot be required of an administrative tribunal
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to follow the procedure insisted upon in courts of law. Different considerations may apply."
Among other things the Director of the Technikon and the Director of Student affairs are on par complainants and investigators. That is why respondent's "LP4 (b)" shows them as having persuaded second applicant to speak the truth at the investigation stage. Even if it is so, they have to act fairly.
In Hamata & Another v Chairperson Peninsula Technikon IDC (supra) when the participation of school authorities was challenged on the principle nemo iudex in sua causa Hlophe JP and Brand J at page 642 HI said:
"The rector was certainly entitled to hold certain tentative or prima facie views about the matter. He was not married to those views to the extent that he believed first applicant to be guilty even before the hearing commenced. As we have said already, members of various disciplinary committees were entitled to hold certain tentative views about first applicant, provided, of course, that they went to the enquiry with an open mind, ready to be persuaded that first applicant was not guilty."
If at the Students Disciplinary Committee, the Director was only a Secretary (as Mr Lichaba argued) he was not entitled to urge on the Council a more
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severe sentence than that recommended. If he was excluded from decision making at the Students Disciplinary Committee level, it was out of fairness to the accused - and to exclude the imputation of meno iudex in sua causa against the proceedings of that committee.
The reviewing court need not meet all the formal standards, provided rules of natural justice are substantially met. Lesotho Telecommunication Corporation v Rasekila 1990 LAC 261 at page 267 Browde JA said:
"A fair hearing as Baxter says in his Administrative Law at p. 542:
'need not meet all the formal standards of the proceedings adopted by courts of law. The vagaries of the administrative process demand much less formality and much greater flexibility.'
"What is required, however, is "fairness" and it seems to me that it was not fair on the particular facts of the present case, for the Managing Director, who was to make the decision whether or not to dismiss the respondent, to himself have conducted the "hearing" albeit in the presence of the Personnel Manager as is alleged to have occurred."
The defects that are in the failure to follow Statutes and Rules are grave and could be worse had second applicant been a minor. In dealing with the issue of prejudice caused by failure to observe Statutes and Regulations, I have to consider whether they are so serious that I should quash proceedings.
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That could even be more prejudicial to second applicant, because applicant wants to complete his course.
The other issue I have to consider is that of the vagaries of an educational institution that operate on discipline. Here I see the need for flexibility and the balancing of factors. The view I take is that despite not hearing second applicant before recommending sentence - the Disciplinary Committees decision was a recommendation that took into account the personal circumstances of second respondent.
It will be observed that the Director of the Lerotholi Tecknikon in participating in the deliberations of the Council and recommending a more severe sentence did the opposite of what the Rector of Peninsula Tecknikon IDC and his two colleagues did. Hlophe JP and Brand J had commended their behaviour in the following words at page 643 HI of Hamata & Another v Chairperson Peninnsula Tecknikon IDC (supra)
"We should not lose sight of the fact that one is here dealing with disciplinary hearings presided over largely by laymen. Therefore they cannot be expected to observe all the finer niceties that would have been observed by a court of law. It appears that every effort was made to give the first applicant a fair opportunity to be heard before an impartial tribunal. Whilst almost certainly in judicial proceedings it would have been
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irregular for the three members of council to sit at the CDC level and later at the council level, we are of the view that, in all the circumstances of this case, it cannot be held that their presence whilst deliberations were taking place at the council level constituted a fatal irregularity."
The underlining is mine.
The minutes of council "LP3" of respondent at page 2 paragraph 3.2 say of the Director:
"He further explained that the procedures of the SDC call for the conducting of a hearing and it was after such a hearing that the Committee came with the recommendations which were tabled before Council for consideration. But the recommendations seemed to be too soft because ill-treatment of its own, warrants expulsion from school and not suspension from the hostels. He referred to Clause 11.3 in the Students Handbook. Therefore the Director recommended expulsion from the institution and hostels."
I agree with Hlophe JP and Brand J in Hamata & Another who see mere presence as not a fatal irregularity, but sitting and participating in decision making at council level is certainly an irregularity.
As I have said the Director who was present when the Students Disciplinary Committee and at council level dealt with the matter of sentence, unfairly in
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the absence of the accused, without the benefit of the accused submissions on record instigated the Council to expel second applicant from the institution. This was unfair and unjust. In other words because of failure of complying with Regulation 14.1 (f) the prejudice against the accused was gross and unmitigated by anything on record.
The court was careful not to impose its own sentence but rather to substitute the sentence that had been recommended by the Student's Disciplinary Committee.
I will now proceed to hear argument on costs.
W.C.M.MAQUTU
JUDGE
JUDGMENT OF COSTS
The failure to follow Statutes and Rules is a very serious irregularity. Failure to hear the accused fully and to hear formal evidence in terms of the rules has caused the second applicant prejudice, the extent of which will never be known. While a perfect hearing is not always possible, the rules
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are a means to as fair a hearing as possible. Accused has had a hearing that is sub-standard. It was to avoid an even greater prejudice that the court had to make do with this type of hearing.
The court has to send a message to all educational authorities that every effort should be made to give students a fair and complete hearing according to the rules of natural justice and those of the institutions. Being laymen is not an excuse - careers and futures of students are at stake. Consequently everybody be he a layman or judicial officer must dispense justice according to prescribed laws.
Respondents are directed to pay three quarters (or 75 %) of the taxed costs.
W.C.M. MAQUTU
For Applicant : Miss Tau
For Respondent : Mr Lichaba
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