HIGH COURT OF LESOTHO
POLYTECHNIC First Respondent
POLYTECHNIC Second Respondent
Mr Justice Maqutu on the 4th April 2005
2nd March 2005 applicants brought an urgent application on the
rules governing periods and mode of service be dispensed with on
grounds of urgency.
a rule nisi be issued calling upon the Respondent to show cause (if
the decision of the Council of the 1st Respondent of the 1st
February, 2005 shall not be set aside, reviewed or corrected.
setting aside and Quashing the proceedings of the disciplinary
hearing of the Respondent as irregular.
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.
that prayer 2(c) should operate with immediate effect.
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.
The decision of the council on pushment is set aside on the grounds
that second applicant was not heard. The recommendation
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.
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.
Lichaba for respondent (on points in Limine) abandoned the objection
to the citing of respondents and concentrated on the issue
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.
second applicant, a third year student was charged disciplinarily of
inciting first year students to ill- treat and assault
Mapitse and Mokoma Ramakoloi both of whom were first year students.
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
"I have found a need to tell the truth after the Director of the
school and the Director of student Affairs advised me to
truth. I admit I am totally involved in the events above-mentioned."
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
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.
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.
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
the aid of his parents on his own initiative. This in my view
mitigates the seriousness of the irregularity. - Had second
been a minor, the issue would much more serious. Nevertheless the
good faith of respondents is called into question when
"LP4(b) shows clearly that respondents were given the
cell-phones of second applicant's father and mother but
they did not
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
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"
the parties presented its case and witnesses were not cross-examined.
no evidence that statements of witnesses were (before hearing) served
on the accused and if so when. Mr Lichaba for respondents
(a) - (d)" were an answer to those statements which according to
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
reports that second applicant wrote marked "LP4 (a) - (c)"
are investigatory not for preparation for disciplinary
The letter "LP4(d)" is the only one that answers that the
charge and it states:
of Students Affairs
writing this letter to reply to the letter which informed me of what
I am accused of.
saying that I did not assault anybody even to ill-treat anybody.
Moreover, I accept that I did make false identification of
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.
be true that accused was asked to present his case or plead. The
record does not show this. What the record shows is that
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."
argued that the record backs up second respondents that the
complainants did not present their case and were not cross
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
appear in person and/or through a representative of his choice and
shall have a right to cross-examine witnesses and examine
documents being used against him for his defence"
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
"The Students' Disciplinary Committee shall have a right to
establish its own procedure."
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
(for applicants) further complained that accused was not head when
the recommended sentence was altered and a severe one
imposed Mr Lichaba for respondents argued that the Statute and the
rules did not provide for such an appearance.
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.
recommendation was not accepted, and the Council without hearing
second respondent at the instigation of the Director decided
second respondent from Lerotholi Polytechnic. The failure to hear and
take into account second applicant's submissions
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
matters worse the council does not deny that it associated second
applicant in a general way with the spread of aids, drunkenness
leaving the premises. It merely says, it said this among other
things. This was clearly not the case in the offence he was
with and convicted.
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
because those rules were made to see that justice is done in an open,
clear and transparent manner. As Mahomed P said in Koatsa
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
properly applying his mind could honestly have come."
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.
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.
dealing with educational institutions in Hamata & Another v
Chariperson Penisula Technikon IDC 2000 SA (4) SA 621 Hlophe
Brand J at page 639H said:
"An administrative tribunal is not a court of law. It therefore
cannot be required of an administrative tribunal
to follow the procedure insisted upon in courts of law. Different
considerations may apply."
other things the Director of the Technikon and the Director of
Student affairs are on par complainants and investigators.
why respondent's "LP4 (b)" shows them as having persuaded
second applicant to speak the truth at the investigation
if it is so, they have to act fairly.
& 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
to the extent that he believed first applicant to be guilty even
before the hearing commenced. As we have said already,
various disciplinary committees were entitled to hold certain
tentative views about first applicant, provided, of course,
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
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.
reviewing court need not meet all the formal standards, provided
rules of natural justice are substantially met. Lesotho
Corporation v Rasekila 1990 LAC 261 at page 267
Browde JA said:
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
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
case, for the Managing Director, who was to make the decision whether
or not to dismiss the respondent, to himself have
"hearing" albeit in the presence of the Personnel Manager
as is alleged to have occurred."
defects that are in the failure to follow Statutes and Rules are
grave and could be worse had second applicant been a minor.
dealing with the issue of prejudice caused by failure to observe
Statutes and Regulations, I have to consider whether they are
serious that I should quash proceedings.
could even be more prejudicial to second applicant, because applicant
wants to complete his course.
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
the Disciplinary Committees decision was a recommendation that took
into account the personal circumstances of second
be observed that the Director of the Lerotholi Tecknikon in
participating in the deliberations of the Council and recommending
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
"We should not lose sight of the fact that one is here dealing
with disciplinary hearings presided over largely by laymen.
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
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
circumstances of this case, it cannot be held that their presence
whilst deliberations were taking place at the council
constituted a fatal irregularity."
underlining is mine.
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
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."
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
absence of the accused, without the benefit of the accused
submissions on record instigated the Council to expel second
from the institution. This was unfair and unjust. In other
words because of failure of complying with Regulation 14.1 (f) the
against the accused was gross and unmitigated by anything
was careful not to impose its own sentence but rather to substitute
the sentence that had been recommended by the Student's
now proceed to hear argument on costs.
failure to follow Statutes and Rules is a very serious irregularity.
Failure to hear the accused fully and to hear formal evidence
terms of the rules has caused the second applicant prejudice, the
extent of which will never be known. While a perfect hearing
always possible, the rules
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
the court had to make do with this type of hearing.
has to send a message to all educational authorities that every
effort should be made to give students a fair and complete
according to the rules of natural justice and those of the
institutions. Being laymen is not an excuse - careers and futures
students are at stake. Consequently everybody be he a layman or
judicial officer must dispense justice according to prescribed
are directed to pay three quarters (or 75 %) of the taxed costs.
Applicant : Miss Tau
Respondent : Mr Lichaba
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