CIV/APN/97/2007

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between:

LEHLOHONOLO
MAJORO 1" Applicant

AND 118
OTHER STUDENT APPLICANTS 2nd 118 Applicants

And

DIRECTOR
OF LESOTHO COLLEGE OF EDUCATION 1" Respondent

DISCIPLINARY
COMMITTEE - LCE 2nd Respondent

THE
SENATE - LCE 3rd Respondent

LESOTHO
COLLEGE OF EDUCATION (LCE) 4th Respondent

JUDGMENT

Delivered
by the Honourable Mr Justice T. E. Monapathi On 7th day of March
2007,

Applicants
are students of the Respondent College who claim against the college
and other Respondents including the Director (the
Rector, the
Principal). For brevity the Applicants are referred as above.

The case
is as explained or stated in the notice of morion being the process
showing their claim. There are about four prayers in
which the
students seek relief. Substantially they would want to be taken back
to the college residences to resume lectures pending
the final
determination

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of this
application. In prayer (c) they request an order against the Director
that he must address the issues of the food and residence
fees. In
the fourth prayer they ask the Director to withdraw the letters of
dismissal of the Applicants. Finally they ask for costs
against the
Respondents if they oppose this application.

The
circumstances surrounding the cause of this case are simply that the
students were asked to vacate the campus as a result of
having
committed acts of violence or of extremely disorderly behaviour. This
had resulted in letters of suspension being issued
to them. But what
is important is that the situation at the college was that there was
no order. Whether we call it chaos or disruption
or anything but
things were not normal. That is why the Director and his people
perceived that it was a situation that would not
allow them to
proceed governing or doing-business as usual. I am saying righdy or
wrongly because that is (good or bad government)
not what I must
decide here. But what is important is that on the face of tilings
there was abnormality.

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It may
perhaps have been that some of the students were going along with the
demands that were made or some of them were not. It
may be that at
some stage there were ongoing classes or not. That is why I made an
example of a case from the High Court of Botswana
where some students
were saying to University authorities: Oh! we are not part of the
riot, we are not part of this strike, why
do you close the
University?" The High Court said since the Principal of the
University perceived that he was not able to
govern the University
substantially well, he could and was entitled to close the
University.

I
sympathize with students who are saying they are not part of the
strike. They said they are prepared to write their examinations,
but
the situation is that the authorities perceive that the situation is
ungovernable. That is what the High Court in Botswana
said in that it
found no fault with the decision of the Vice-Chancellor to close the
University. Those were the circumstances.

4

Here we
have a situation which is almost similar to Botswana example. On the
surface there was abnormality. This is correctly speaking
a thing
that has to be recognized and not what caused the situation. What we
are concerned with is whether those who came to court
did so for the
right reasons or whether they came using the right procedures of
court. I am not being called to say whether the
Principal did well or
did not do well in closing the College. I am not to say the students
complained for good reasons or did not
complain well as part of my
decision. However counsel in addressing me may have alluded to such.
What is common cause or what is
agreed is that the students were sent
home because there was something wrong in the nature of perceived
chaos in the administration
of the college. I will not deal with the
aspects of the merits.

I now
come to the points raised. This includes misjoinder and lack of
urgency. It is useful to note that there are different kinds
of
procedures used to institute proceedings in this court as a High
Court. There is in some cases a trial where one institutes
summons so
that there can

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ultimately
be evidence led. Later issues or selected points may have to be
decided. On the other hand, as in the present situation,
the
Applicants have used what is called application procedure (in terms
of Rule 8). This therefore being a case that is made or
decided on
papers.

That is
why in line with the above we will speak about founding affidavits,
answering affidavits and replying affidavit. It is because
these are
statements on the facts and the law that are made on papers under
oath. And then there will be debate about the issues
raised in the
papers. As said before this procedure is governed by Rule (8) of the
High Court, in which we will refer to Rule (8)
(4), Rule (8) (22) and
so forth because it is what governs this kind of procedure.

Rule (8)
which speaks about notice of anticipation, and about Rule (8) (4)
speaks about the need to give notice. It is also about
Rule (8) (22)
which speak about urgency. This is what concerns us now. What is
important is that the Respondents are saying, on
the basis of
non­compliance with the rules this application must be dismissed.
They are

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saying:
"You Applicants you have not complied with these rules in this
sense or in that sense and the application must be dismissed."

I start
with this query by Mr. Mohau that there was no right to join the
disciplinary committee of the college (the Second Respondent).
In
these proceedings it was submitted that since there is a separate
institution like the disciplinary committee in terms of the

regulations of the college, it makes sense that sometimes it can be
called before court or sometimes it can be so cited. But then
if it
is brought before court there must be good reasons why it is being
joined. And if it is cited, as it has been cited, what
is it that the
Applicants claim from the disciplinary committee? The complaint by
Respondents is that the disciplinary committee
has been brought
before court but nothing has been stated as to why the committee has
been cited or what it has done, or what was
their role, in the
circumstances of the facts of this case, has been.

As the
Respondents further argued, that ideally the Disciplinary Committee
could be properly brought before court if it had done

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something
like charging people, receiving charges, deciding disciplinary
matters of misconduct. If it had done any of those. But
demonstrably
there seemed to be nothing in the papers pointing out in that
direction. I would conclude and I decided that there
is no good
reason why the disciplinary committee was joined. This point
succeeds.

I now
speak about the question of the lawyer or the practitioner who is
said to have sworn the deponent affidavits of the Applicants.
That
someone other than Mr Metlae did so. That this was irregular because
Mr Metlae is out of the country and he could not possibly
have
attested to the affidavit. What this amounts to is a serious
allegations, where the lawyer acted improperly. As the High Court
we
are charged with protecting the community against the conduct of
lawyers. Before this court or any other court, lawyers have
to act
honourably, honestly and with probity. It is the High Court which
manages Advocates and Attorneys and which ultimately prefers

misconduct charges against them, so to speak. And if one of them is
removed he is removed by the High Court. That is why when the
lawyer
is admitted he is admitted by the

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High
Court. It is therefore the High Court which oversees the conduct of
Advocates and Attorneys. My only complaint is that the
explanation
that Mr Chobokoane made should have been on affidavit. But he makes
an explanation from the bar, about something that
is very serious. I
however decide not to make any final decision on this point. I prefer
that it is no record against the alleged
malfeasant practitioner. It
is not necessary for me to decide this point.

I now
come to the charge or the complaint that the Applicants, when they
made the application before the Judge who gave the interim
order,
that is when they approached the Judge on the 28"' of February,
2007, that they had not allowed a period of two (2)
days or
forty-eight hours to expire before they approached the Judge. This is
after filing the application. That is in contravention
of Rule 8 (4).

The
requirement of the last mentioned Rule is that when one files an
application today one must make an allowance of two (2) days
before
one can approach a Judge. It appeals to be demonstrable that the

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application
was filed on day one and on that day the Judge was approached. It was
on the 28th of February, 2007 and Mr. Justice
Peete granted a rule on
the same day.

Not only
that Peete J seemed to have granted prayer 1 (a) and prayer 1 (b). We
are to be reminded what prayer (b) says. It prays
that the
Respondents shall be ordered to allow Applicants to go back to the
College residences and resume lectures pending the
final
determination of this application. What was happening was that the
Judge was saying in effect, that Applicants could be back
to the
College and resume business immediately. This appears so unless there
is misunderstanding with my reading of this. I am
satisfied that, in
my perception, this was the order granted, because the Applicants
later complained that there has been contempt
against this order.
Interestingly this is tied to the next point

The point
I want to make now is that at this time, on the 28"' of
February, 2007, when this order was granted the College and

administrators had not even known that there was an order against
them

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because
the order had been granted ex parte. The court was eventually saying
to Applicants: "Go back now and resume business,"
without
having informed the Principal and, having not heard the other side. I
emphasize: having not heard the other side. It would
have been
different if the court had been approached when the Rector and his
people had been served with the papers and given notice
that they
must "know that Applicants are going to court against them."
But this is not what happened. This is the very
nature of the
complaint. It is to be considered that in fact this was what happened
that on the first day the Judge was contacted
and the application was
moved without notice.

The
Respondents are saying that order was irregular, and this objection
is consistent with the requirement of Rule (8) (4) that
speaks about
ex parte application and where one gets a drastic order when there
was no immediate harm or prejudice. In my view
this was not justified
in the present application.

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If the
application was made on the same day it was different if an
explanation was made in the papers as to why the application
was
treated in this way and asking for necessary and specific
dispensation from the Judge. If there was such a statement to the

Judge justifying and requesting this type of order where the other
side was not given notice then it should have been recorded.
And the
Judge would have noted that he has been given the reasons why the
other side was not given notice. The Judge would then
have recorded
that he has been given reasons why there is no notice of forty eight
(48) hours because this Rule 8 (4) speaks about
an important
requirement called audi alteram partem one of the most fundamental
principle of our law. It means "let the other
side be heard."
Audi alteram partem enables that there can be a fair hearing.

It is
only in exceptional circumstances where an order can be given ex
parte, because once one hears an application without the
other side,
one is taking away the other's right to be heard. Once that is done
it is against fairness and justice. This case of
Mahlakeng and others
vs the Southern Sky LAC (2000 - 2004) 742 bears testimony to this
requirement

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and
several others. So that this requirement is not a new tiling in our
practice. It is for this reason that this application ought
to he
dismissed.

It may he
correct that there was this urgency that the Applicants speak about.
It may perhaps be that it was caused by the Applicants
having
initially caused discord. It may be that it was caused by Applicants
having refused to disperse and go home when ordered
to do so by the
college. But fundamentally the complaint was against the students for
having caused disorder. It is being said
if they had been asked to go
home rightly or wrongly they should have complained peacefully, and
then proper action would have
followed. Because this did not happen
now there was this urgency. Mr. Mohau argued that they caused the
urgency. Whether this is
so or not most importantly this urgency was
not a good reason why the order was taken the way it was taken. In
the circumstances
where these Applicants were not willing to
disperse, there was no need for the court to have been approached the
way it was approached.

The
application is dismissed. There will be costs against these
Applicants.

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I want to
underline that it is a serious thing if a big institution like a
College or University does not function well. It does
not matter who
has caused that There are many students in a college like the Fourth
Respondent and the effects of any disruption
cannot be
underestimated. Most importantly the education of the children or
students or adults of this nation is a serious thing.
That is why any
disruption becomes a serious thing. Utmost care and circumspection is
required in the government of such institutions.
Not least through
the co-operation by students themselves. They must not hide under the
cover that they are youth or they are young.
They are dealing with
precious and valuable property and if there is a danger to that
property, things becomes serious.

This is
so regardless of whether one is young or old.

T.
Monapathi

Judge

For
Applicants : For Resondents :