HIGH COURT OF LESOTHO
CHAIRMAN OF THE STUDENTS' DISCIPLINARY
COMMITTEE OF THE LEROTHOLI POLYTHECHNIC 1st RESPONDENT
POLYTHECHNIC 2nd RESPONDENT
BY THE HONOURABLE JUDGE M. MAHASE ON THE 4th DECEMBER 2007
above-shown applications were consolidated because they are founded
upon identical issues.
have approached this court on urgent basis following their suspension
from the 2nd respondent's institution.
asked the court to stay and review the decision of the first
respondent suspending them from the 2nd respondent's institution
the whole academic year of 2006/2007. The applications are being
letter of suspension; in question is marked annexure "MM4"
dated the 7th February 2007.
the applicants were charged by the respondents for having contravened
Article 8.7.1 (c), 11.3.1 (e) and (f) as well as
11.3.2 (i) of the
Students Discipline and Residence Regulations to wit see annexure
8.7.1 of the Students Discipline and Residence Regulations reads
following shall constitute a breach of discipline:
A conduct which causes, or is liable to cause damage or violence to
property or person.
(i) Within L. P.
(ii) Notwithstanding that the conduct in question occurred outside
the LP, provided that such conduct is that of a student to another
student, an officer, member or employee of the institute arising from
their relationship as learners, officers, members or employees
to the hearing of the disciplinary case against the applicants, a
verdict of guilty was returned/entered in respect of
both of them.
punishment, which was duly communicated to them has been filed herein
this papers as being annexure "MM2" dated
the 5th December
punishment imposed upon them is that (I quote):
SDC has therefore, resolved to punish you as follows:
are required to provide community service for (12) months with
effect from 11th December 2006 under the supervision of Head
Maintenance and SDC.
are expected not to commit similar offences until you complete your
studies at this institution failing which you will be
been signed by one M. Sesoane (Mr.) - Rector (a.i.). Mr. Sesoane has
expressed his wish that he hopes that the said punishment
the applicants to become law abiding citizens.
pause to observe that it is not clear on these papers when the
applicants will complete their studies at the Lerotholi Polytechnic.
as it may, it is also not clear whether or not the portion or all of
the punishment which appears under item (1) of annexure
is suspended or not upon the condition stipulated in item (2) of the
said "MM2".What is very clear from
the wording of item 2 of
this annexure is the fact that this is a kind of punishment which
will always remain hanging over the
heads of the applicants for
whatever remaining period whilst they are students at the second
allege that they duly commenced with the punishment imposed upon them
and carried out the community service under the
supervision of one
Mr. Mokolatsie Ntlhakana.
facts are denied by the said supervisor in his supporting affidavit
at paragraph 2.1 - 2.5.1 hereof to wit see annexure
to the timetable he had kept as a record for those students who had
been placed and attached to his office to
do community service as a
form of punishment.
annexure A is inconclusive because it is not completely filled in, so
not much weight can be attached to it.
result of this alleged failure or refusal by the applicants to cany
out punishment imposed upon them, they were once more suspended
the SDC from the second respondent's institution for 14 (fourteen)
days with effect from the 15th January 2007. The other reason
this kind of measure being taken is allegedly that the Rector of
respondents had a reasonable fear that the applicants would
incite other students to attack Life High School scholars. He has
however not provided the basis for such fear. This is
not fair to the
as it may when the above-referred to 14 days' suspension expired, the
applicants went back to school and attended classes.
however, once again suspended from the second respondent's
institution allegedly by the Governing Council for the whole
of the academic year 2006/2007. The grounds for this latter
suspension being that the applicants have failed or refused
out the community service punishment which had been imposed upon them
by the SDC as per annexure "MM2" herein.
the punishment which the applicants are challenging as being
irregular and illegal. They aver that having been
from school for 14 days by the SDC immediately after allegedly having
failed to serve the punishment imposed upon them
as per annexure
"MM2"; they were then subjected to double punishment on one
and the same offence by the Governing Council
which imposed yet
another more severe punishment upon them for the same offence.
their further argument that having been suspended from school firstly
for 14 days, they have been duly punished for their
to carry out the community service punishment and that therefore a
further suspension from school for the whole
academic year of
2006/2007 as per annexure "MM4" was double
jeopardy/punishment for the same offence for which they have
been punished. They argue that they are unfairly being forced to miss
a lot in their studies.
It is for
the above reasons that the applicants have asked this court to review
and set aside the last decision or punishment that
they be suspended
from school for the whole of the academic year 2006/2007. Reasons in
support of their prayers have been spelt
out clearly in paragraph 14
of their founding affidavits.
further allege that the offence for which they were charged is not a
disciplinary offence nor is it contained in the
Disciplinary Regulations of the second respondent -Vide Clause 14.1.
clarity, it is apposite to spell out clearly the sequence of events
which culminated into the events forming subject-matter
November 2006 - (no date given) - the SDC set to hear and determine
the disciplinary case against the applicants, for having contravened
Articles 8.7.1(c), 11.3,1(c) and (f) and 11.3.2(i) of the Students
Discipline and Residence Regulations. (Annexure "MM1 herein).
December 2006 - Having been found guilty for having contravened the
articles stated above - punishment imposed upon applicants
communicated to them as per annexure "MM2". The punishment
being that applicants should do community service for
January 2007 - Annexure "MM3" - entitled "Failure to
execute punishment" was issued and served upon the
were on that day suspended from Lerotholi Polytechnic and its
related activities for 14 (fourteen) days with effect
January 2007 pending the
of SDC's recommendation, as per Clause 11.4(b).
11.4 (b) of the Students Disciplinary and Residence Regulations reads
(b) if a
student is suspected to have committed a breach of discipline as per
Article 8.7.1 or offences listed in Article 11.3,
immediately be suspended for a period not more than two weeks from
Lerotholi Polytechnic premises and all related activities
investigation. The institution will not be obliged to provide such a
student which tutoring.
February 2007 - Annexure "MM4" entitled "Verdict on a
case of failure to comply with punishment. (My underlining)
issued and served upon the applicants.
served to inform the applicants that they were, with immediate effect
suspended from Lerotholi Polytechnic and its related
the whole 2006/2007 academic year.
further to inform the applicants that this resolution was taken on
the basis that the Students Disciplinary Committee
found you guilty
of failing to comply with its
(refer to the letter dated 10th January 2007), hence inolating clause
14.1(i) of the Students Discipline and Residence
clause provides that
"If a suspect is found guilty of an offence (s) and does not
comply with the punishment meted out, he/she is liable to immediate
suspension or expulsion without further hearingfe)". (My
pause to observe that the heading in annexures "MM3" and
"MM4" are in respect of the same offence or
that the applicants have failed to execute/comply with punishment
meted out to them. It is punishment that appears
in annexure "MM4"
that is being challenged and not that in"MM3".
no allegation that the two headings refer to two different forms of
punishment in relation to two different offences committed
punishment referred to in annexure "MM4" is the very one
referred to in annexure "MM3" for which the applicants
punished by being suspended from Lerotholi Polytechnic for 14
(fourteen) days with effect from the 15th January 2007. It is
respondents' story that the applicants did not serve the punishment
of fourteen (14) days suspension from the LP
related activities. The fact that they served this punishment has not
It is the
applicants' story that before being served with annexure "MM4"
dated the 7th February 2007, they did not attend
school at Lerotholi'
Polytechnic until after the expiry of the said fourteen days period
referred to in annexure "MM3".
They only went back there to
attend normal classes on the 24th January 2007.
a careful and proper reading of the contents of annexures "MM3"
and "MM4" will show that the applicants'
case of failure to
execute or comply with community service punishment was dealt with by
two different bodies of Lerotholi Polytechnic;
Students' Disciplinary Committee which sat over this case on the 10th
Committee imposed a punishment of a suspension of applicants from the
Lerotholi Polytechnic for 14 days.
reason for it having done that was that the said committee had made
recommendations to the Governing Council, which recommendation
be communicated to the applicants in due course.
no record annexed to the papers now before court showing whether or
not such a Governing Council ever received such a recommendation.
is there a record attached herein of the proceedings of such a
Council nor indeed that of the Students' Disciplinary Committee.
the procedure adopted by the Committee (SDC) of suspending the
applicants from Lerotholi Polytechnic for 14 days whilst
awaiting the recommendation or ratification of the Governing Council
is not sanctioned by any of the articles or regulations
assuming, without conceding that the above is sanctioned by laws
governing the Lerotholi Polytechnic, what has ultimately
is that the so called Governing Council has not ratified any
recommendation of the SDC.
the papers filed herein, there is no recommendation from the SDC for
the Governing Council to ratify. On the contrary,
the said Governing
Council has imposed another punishment which is completely different
from the one of 14 days referred to in
Governing Council has imposed a very harsh punishment of immediate
suspension from Lerotholi
for the whole 2006/2007 academic year. This was done without the
Governing Council having afforded the applicants a
hearing of any
nothing placed before court showing if indeed the Governing Council
even looked at annexure A before it made a finding
applicants had refused to serve that punishment of community service.
Governing Council, has in imposing with immediate effect the said
punishment upon the applicants invoked the Provisions of a
14.1 of the respondents' regulations which oust the audi alterum rule
of natural justice.
a plethora of authorities to the effect that no man can or should be
punished before being heard. Indeed being an administrative
tribunal which has or which exercises quasi-judicial powers, the
Governing Council is enjoined by law to have given the
fair hearing before having imposed a punishment which produces such
negative and adverse consequences against the
ATTORNEY GENERAL, EASTERN CAPE v BLOM & OTHERS 1988 (4) S.A. 645.
effect of the above is that when on the 10th January 2007, the SDC
charged the applicants for having violated the Provisions
14.1 of the Students' Discipline and Residence Regulations, it did so
irregularly and that subsequently the Lerotholi
Council acted upon that irregularity of the SDC when it too suspended
the applicants with immediate effect
without any further hearing.
There is no way in which a clause which provides a penalty/punishment
can be violated. This is an
not least it is apposite to note that the charges which were
preferred against the applicants and upon which they were
guilty and then resulted into their being suspended from the
Lerotholi Polytechnic relate to their having contravened Provisions
of Sections 8.7.1(c); 11.3.1(e) and (f) and 11.3.2 of the Students
Discipline and Residence Regulations.
noted further, that with the exception of the Provisions of Article
11.3.2 (c) the applicability of the provisions of all
articles is confined and or is limited to situations wherein a
student(s) of Lerotholi Polytechnic has committed actions
mentioned against property or person:
the Lerotholi Polytechnic
that the conduct in question occurred outside the Lerotholi
Polytechnic, provided that such conduct is that of
a student to
another student, or officer, member or employee of the institute
arising from their relationship as learners, officers,
employees of the Lerotholi Polytechnic - Vide Article 8.7.1
observed that the charges as contained in annexure "MM2"
make no reference at all to any of the people nor property
to in the Provisions of Article 8.7.1(c). Instead, the people and
property referred to therein are of Life High School.
absence of a record of proceedings of the disciplinary hearing held
against the applicants by the respondents, it can not
argued that the offences with which the applicants stood charged are
disciplinary offences since they are not contained
in the said
regulations of the second respondent.
it can be argued that the said charges are not in line with the
wording of Articles 8.7.1 of the second respondent;
clearly spells out which kind of
constitutes instances of a breach of discipline in so far as the
students of Lerotholi Polytechnic are concerned.
question to be answered is, have the applicants been reasonably and
sufficiently in law informed of the nature of charges preferred
against them? It is not easy to answer this question because the
respondents have, and contrary to the order of this court dated
7th May 2007, not dispatched the record of proceedings of the
disciplinary hearing against the applicants to the Registrar
Court. This issue has not really been canvassed during argument of
these two applications. However, this is the kind of
this court does not view lightly. Contempt of an order of court is a
as it may, it is trite law that a charge sheet must be specific, and
should reasonably and sufficiently inform the accused
of the nature
of the charge. See REX v MPENA 1947(1) S.A. 635.
that the victims and property referred to in annexure "MM2"
are not entities belonging to the Lerotholi Polytechnic
and so are
not the ones referred to in the said Provisions of the
of the Students Discipline and Residence Regulations which the
applicants are alleged to have contravened leaves a lot
to be desired
as to the nature of charges which have been preferred against them.
already been alluded to above, the respondents have not dispatched
the record of their proceedings to this court and the
their having not done so is that there was no need for keeping such a
record because the exercise was done in order
to determine if
applicants were carrying out their punishment.
respect, and due to the far reaching consequences from this exercise,
such a record of such proceedings (or exercise) should
kept. It is highly prejudicial to the applicants that no such record
of proceedings was kept. It is difficult for this
court to believe
this story of the respondents.
case, the above-referred to exercise was a second disciplinary
hearing preferred against the applicants. There is yet still
record of proceedings dispatched to this court to the second hearing
despite the order of this court alluded to above that such
be so dispatched.
conclusion one observes that while the alleged conduct of the
applicants is unacceptable and brings into disrepute the Lerotholi
Polytechnic, in pursuing the disciplinary hearing against the
applicants, the respondents did so in total disregard of provisions
of their own regulations, thereby prejudicing the applicants.
It is for
the foregoing reasons that this court has come to the conclusion that
punishment imposed upon the applicants as per "MM4"
constituted double punishment and that it should, and is hereby set
aside and the applicants' application is granted in terms of
1 and 2(b).
interdict dated the 3rd May 2007:- Counsel for parties herein had
been informed through the office of the then Deputy
Registrar of this
Court that this court had granted indulgence to them to hear them on
these applications, on 3rd May 2007 at 2:30
been approached by the then Deputy Registrar of this Court and at the
request of Mr. Tsenoli - Counsel for the applicants;
this court set
aside its business for that afternoon
view of this court, it is highly irregular that the applicants have
been denied an opportunity to be heard before the Governing
imposed a punishment herein stated in annexure "MM4". This
grave irregularity has been committed by the Council
by having not
only denied applicants a fair or any hearing at all, but in addition
in doing so it invoked the wrong article of
the 2nd respondents
regulations - to wit Clause 14,l.(i) which does not create any
offence at all.
hardly mention that whatever the conduct of the applicants was, that
prompted the respondents - to take the most serious
suspending them from the Lerotholi Polytechnic for a whole academic
year, fairness and reasonableness demanded of the respondents
applicants an opportunity to be heard.
NOKA-NTSO PRIMARY SCHOOL AND OTHERS v KHABOLISO AND ANOTHER 1995-99
principle of natural justice has survived from ancient times and it
is recognised by humanity as the corner stone of democracy
justice. Vide Baxter Administrative Law.
court observes that nowhere in the regulations of the respondents has
suspension and or expulsion been provided as mechanisms
to be invoked
whilst one is awaiting the
of any matter/issue which has been referred to the Lerotholi
Polytechnic's Governing Council for ratification.
words, suspension and expulsion have throughout these regulations
been used as forms of punishment which the respondents are
to impose against any of their students who have violated the various
provisions of their Student Disciplinary and Residence
equally clear from the Provisions of Clause 11.2 of annexure "MM1"
- page 45 that suspension and expulsion are provided
as forms of
punishment(s) to be imposed upon any student of Lerotholi Polytechnic
who is found to have offended against it regulations,
above observation can not be denied; the Provisions of article/clause
14.1 provide the penalties which should be imposed
upon a student who
has been found guilty of having committed an offence (s); and who has
not complied with the punishment meted
out to him/her. This is a
penalty section/clause. It does not create any kind of an offence if
of punishment thereby provided by the Provisions of Clause 14.1 of
the said regulations is suspension or expulsion and
nothing else. The
said provisions of this clause are silent as to the period of
suspension should that be imposed. It then can
safely be argued that
the body whose duty it is to discipline or charge students has a wide
discretion as to the period of suspension.
Clause 14.1 further provides for the suspension or expulsion with
immediate effect of any student who has been found guilty
respondents and or the Lerotholi Polytechnic without further
hearings. This is what was done against the applicants in the
case. I have already alluded to the effects of any provisions or
procedure which denies anybody against whom a drastic
or negative act
is taken are. I need not repeat same safe to observe that this clause
is illegal because it operates against and
excludes the audi alterum
made the above observations, it immediately becomes very clear that
it was wrong for the respondents to have purported to
Provisions of Clause 14.1 against the applicants since this does not
create any kind of an offence.
with this application. Prior to that, the Deputy Registrar had
informed court that both Counsel were aware of the indulgence
and to the dismay of this court Mr. Letsika, Counsel for respondents
did not attend court. No reasons were given why he
did not attend. He
instead filed a Notice of Anticipation in Terms of the Provisions of
Rule 8(18) anticipating the rule to the
9th May 2007.
application was however dealt with and argument by both counsel heard
on the 10th May 2007. Counsel for the respondents never
did he challenge the order dated the 3rd May 2007.
precise, the matter was by consent of both Counsel argued on merits
on the 10th May 2007 after a Notice of Anticipation was
served upon the applicants. Attorney for respondents again filed a
notice in Terms of the Provisions of Rule 8(18) dated
September 2007, but this was never argued.
attorney for respondents can not be heard to complain now when in
essence he waived his right to do so. Having argued
the matter on
merits on the 10th May 2007 and
absence of any prejudice he is estopped from complaining about the
order dated the 3rd May 2007.
party should bear its costs.
Applicants : Mr. Tsenoli
Respondent : Mr. Letsika
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