CIV/APN/109/2007
IN THE HIGH COURT OF LESOTHO
In the matter between:
DOMINIC KIBITI & 479 ORS. APPLICANTS
AND
RECTOR LESOTHO COLLEGE OF EDUCATION 1st RESPONDENT
SENATE LESOTHO COLLEGE OF EDUCATION 2nd RESPONDENT
LESOTHO COLLEGE OF EDUCATION 3rd RESPONDENT
JUDGMENT
Delivered by the Honourable Mr. Justice G. N. Mofolo On the 28th March. 2007
This is by no means a long case. Students of this college dissatisfied with aspect of running the school went on strike and the management to contain disruption and minimize potential damage to school premises and security of
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staff members closed the school. Applicants, registered students of the third respondent have approached this court claiming in their notice of motion.
Rules pertaining to normal modes of service be dispensed with due to the urgency hereof.
That a Rule Nisi be and it is hereby issued calling upon the Respondents to show cause, of any, why on the date and time to be determined by this Honourable Court an order in the following terms shall not be made final and absolute to wit:
The respondents be directed to allow applicants access to the halls of residence and other facilities of the college to which they were not restricted access prior to the closure of the college on 01 March, 2007 pending finalization of this matter.
That respondents should publish and/or avail to the SRC the documentation relating to revised college fee structure.
That respondents should publish and/or avail SRC the documentation relating to the formula/method that the respondents use to utilize students study loan money that NMDS pays direct to the college in respect of monetary allowance for food, respective college fees, accommodation.
That it is declared that the practice used by the 3rd respondent of not refunding unutilized money belonging to the students whose nature of respective
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academic courses forces them to attend internship for the second semester and/or for the whole year of study constitutes unjust
enrichment to the college and it is therefore unlawful.
That the act the respondents of closing the SRC's office and forcefully taking possession of the office equipment including but not limited to, office computer, SRC's stamp and correspondence documentation without any hearing whatsoever which renders the SRC's incapable of communicating with college management is unlawful.
That the Rector should formerly apologise to the students for the ill-treatment the college meted out to them.
Costs of suit in the event of unsuccessful opposition hereof.
Further and/or alternative relief as the Honourable Court deems it fit in the circumstances.
The application was opposed and in opposing it Mr. Mohau took points in limine, namely:
4.1. Locus standi.
4.2. Prayers 2 (d) and (f) have no basis in law and cannot thus be granted, let alone in motion proceedings.
4.3 This application is taught (to read fraught) with material dispute of fact.
With regard to 4.1 above, Mr. Mohau has submitted actio popularis is not part of our law for it is trite law that a litigant cannot bring a suit to seek
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relief for another party. He has referred the court to annexure "A" of the record of proceedings where it appears a handful of students, probably six (6) in number is not registered with the university. In this court's view, this is a paltry number not sufficient to influence the result of this application and as has been said, one swallow does not make a summer. It has been said there is no "actio popularis" or citizens' action by which any member of the public might apply for review in order to vindicate the public interest if he is not personally affected by the illegality concerned. In Dalrymple v. Colonial Treasurer 1910 TS 372 some members of the last Legislative Council of the Transvaal Colony attempted to interdict the colonial treasurer for paying excessive amounts to members of the Transvaal Parliament and the court finding that applicants had insufficient interest to seek the interdict for lack of standing Innes CJ observed at 379:
"The general rule of our law is that no man can sue in respect of a wrongful act, unless it constitutes the breach of a duty owed to him by the wrong doer, or unless it causes him some damage in law. This principle runs through the whole of our jurisprudence. It is not confined merely to the civils ride and the rule applies to wrongful acts which affect the public, as well as to torts committed against private individuals."
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Baxter in his Administrative Law (first published in 1984) at p. 652 says in order to establish one's standing, the challenger must claim that:
Some legal right or reorganized interest is at stake;
The right or interest is direct; and
The right or interest is a personal (and possibly special) one.
He says various kinds of personal interest might be considered sufficient for standing and may be grouped into three broad categories: legal rights, legal interests and factual interests and nearly all appear to recognize something less than the invasion of a clearly
established legal right as sufficient for locas standi meaning, legal interests are normally sufficient. In his Founding Affidavit the first applicant has deposed at paragraph 4.1 that "the problems are mainly administrative related including, but not limited to the woes of students who find themselves unable to write supplementary examinations timeously; problem of results which are published behind schedule" and management making crucial decisions without inviting the opinion of students.
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At para. 4.2 the applicant has said 119 students were dismissed in relation to woes stated in paragraph 4.1 above and they applied urgently to this Honourable Court in CIV/APN/97/07 and they obtained an order that "The respondents shall not be ordered to allow the applicants back to college residence to resume lectures pending determination of this application. Applicant says respondents have refused to honour the order.
At para 4.3.1.applicant has deposed in the year 2006 there was a student strike concerning the same issued stated in paragraph 4.1 and after the strike the college management stated that grievances of students would be addressed the following year namely 2007 but this has not materialized. First applicant's Founding Affidavit is covered with several complaints affecting students and to this extend students have submitted affidavits in support of the applicant. I am of the view the point in limine was not properly taken in that in this application some legal right or recognized interest is at stake and the right or interest is direct being a personal and special one. I would dismiss the point in limine taken.
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With regard to 4.2 above, Mr Mohau has submitted applicants are seeking relief on behalf of, or for third year students who have themselves not sued or authorized applicants to seek relief on their behalf.
In paragraph 1 of his Founding Affidavit first applicant has deposed:
"I beg indulgence of this Honourable Court to state collectively that my co-applicants are described in a nutshell and for the sake of brevity as students of the Lesotho College of Education in their respective 1st and 2nd years of study and are lawfully registered."
So far this court is concerned it is satisfied that applicant's are seeking relief for first and second year students. Prayers 2 (b), (c), (d) and (e) speak of the SRC and while I concede applicants cannot speak for the SRC, I see no connection and the court has not been told of the connection between the SRC and third year students or that as a rule, members of the SRC are third year students. I would also dismiss this point in limine.
On novelty of the prayers, I have already dismissed point in limine related (d) and have no wish to return to it. As for 2 (f), a case in many ways similar to the present came on appeal to the Appeal Court vide NUL. Students Union v National University of Lesotho and Others, LLR and
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Legal Bulletin 1993-94 p.87 in which the Judge President Mahomed considered prayer 3.2 that the Student Union apologise, in writing, to the Senate, Vice-Chancellor and the Council. The Judge President answered this by saying first even if paragraph 3.2 was objectionable it was both notionally and grammatically severable from 3.1. Another reason given was that effective discipline and basic respect by students for the administration and staff of the University were essential for university's discharge of functions and duties for condition set out in paragraph 3.2 of the resolution of the University Council could have been considered necessary to create an atmosphere conducive to the discharge of functions. Mr. Mohau has spoken of the novelty, in particular, of prayers 2 (d) and (f) and this court finds nothing so novel about the prayers considering 2 (d) is a legitimate complaint and the Appeal Court approved prayer 2 (f) concerning university and student relationship. Such a prayer coming from students to establish friendly relationship can hardly be termed an unusual thing or occurrence. I would also dismiss this point in limine.
Concerning 4.3 above, Mr. Mohau has also submitted there's a serious if material dispute of fact in this application in that prayer 2 (g) is incapable of being granted for applicants have deliberately withheld facts surrounding the
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closure of school. He has further submitted the prayer stands to be dismissed as it accounts to giving applicants the right to remain on college campus for reasons other than the pursuit of their studies. Once again the prayer under attack by Mr. Mohau formed part of the prayers in NUL Students Union above at p.88 as prayer 1 (a) in the High Court while the prayer in these proceedings is prayer 2 (a). And while it is true in NUL Student Union above the prayer was not objected to in limine, the only reference to it by Kheola J. at p.99 hardly controverting it was that "it was pointless and unwise to allow a student body of some 1200 individuals, which was not attending classes, to remain within the campus". The court also concedes that the remark could be referring also to prayer 1 (c). With respect, this court is not able to perceive the material dispute of fact in prayer 2 (a) except that while in NUL Students' Union above prayers were clear and concise and one knew what the students asked of the court, in the instant application the court is not so sure applicant for example not having adverted to prayer (d) in Students' Union above declaring the closure of the university to be null and void. This court would also dismiss this point in limine and consequently all points in limine taken are dismissed.
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As to merits, this court was addressed on merits by counsel on either side and would like to register my appreciation to both counsels in furnishing the court with strong, relevant cases which made the task of the court much easier rather than scarring all over the show to unearth authorities as is often the case.
This is an application in which students being unsatisfied with the school management requested the management to address their discomfort. From papers before me it appears the management was prepared to address complaints but applicants pressed for quicker solution which the management was not able to contain. Management fearing disruption, intimidation and general commotion which could spill into violence and damage to school property decided to close the school. I have already said that save for unregistered students of the college, applicants having personal, direct interest in the application properly appear before this court.
This court has read proceedings in this application and it appears strikes by students are not peculiar to the third respondent making one wonder why strikes are recurrent to the third respondent.
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In his Found Affidavit (para 4.1) first applicant supported by applicant complains that problems are "mainly administrative related" of students "unable to write supplementary examinations timeously;" problems of results which are published behind schedule "this being the norm;" relationship between students and the management the latter making decisions without
inviting the opinion of students (pp.38-99 of the Record of Proceedings).
I am at a loss how the applicants have been answered for it does not seem to be paragraph by paragraph and paragraph 44 of the Founding Affidavit just pops up from nowhere. Paragraph4 consists of sub-paragraphs 4.1,4.2,4.3, 4.3.1, 4.3.2, 4.3.3 and yet, in answer, the Answering Affidavit has AD PARAGRAPH 4 there being no sub-paragraphs as shown above the respondent having substituted applicant's paragraphs for his own though, if the court must go by respondents' substituted paragraphs, sub-paragraph 6.1 (a) is to the effect contents are irrelevant -I don't agree because this is what students are complaining about and it is for the deponents to admit or deny. Grudgingly though, third respondent having said the matter is irrelevant admits there is something wrong for he says third
respondent is taking steps
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to address causes of delay in the processing of examination results. I take the complaint as admitted.
applicant's allegations have been denied.
6.2 Applicant's allegations have also been denied except that there was no application to have irrelevant matter expunged from the record.
Generally speaking through, and taking into account all the circumstance of this application, it appears to me that allegations by the applicants have been denied as appears in the Answering Affidavit of Ntalenyane P. Lesoetsa the Rector of the third respondent as is claimed in his Opposing Affidavit.
Mr. Mohau has submitted as this is an application where allegations by the applicant are denied by the respondent the court has not choice but to accept respondent's version. Mr. Molati has submitted, on the contrary, that third respondent has disregarded own rules by requiring students to sign an undertaking that they will forego any surplus fund contrary to the rules of the third respondent and he has referred to p.30 of the School Calendar regarding financial regulations of the third respondent. Now, regulation 10 concerns meals and reads: Refunds on meals must be requested in writing at
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the end of the year. In a case where the student requests a refund on meals he/she forfeits the subsidy from the college and costs will be calculated at the prevailing rate per day. Mr. Mohau has admitted the practice was abolished primarily because it is in any event superfluous. The court agrees.
Mr. Mohau has also submitted the only questions to be decided by this court are as appear in applicant's Notice of Motion by which applicants must rise or fall and the court also agrees. According to the Rector of the third respondent, he directed students to resume lectures but many did not heed his call and other students chased students who heeded his call out of lecture halls. He invited students to a meeting to address their grievances and also tell them unless life returned to normal the college would be temporarily closed and when his attempts were spurned, he had no option but to close the college and send students to their homes. A question which arises is whether the college was legitimately closed and students sent home; also whether despite the closure students could be allowed access to halls of residence and other facilities of the college; respondents to publish SRC documentation relating to revised college fee structure; availing the SRC documentation relating to formula to utilize student loan and other matters having to do with the SRC; the Rector having to apologise to students. As to
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the closure of the university and sending students home, applicant's counsel has conceded given circumstances of the strike and personal safety of all involved and to save unnecessary loss to the college, the college was properly closed and students sent home and my view is the concession was wise. Whether students can be allowed access to halls of residence and other facilities of the college, I wish to go back to Nul Students' Union case above where students claimed release of their personal belongings but it was found by the court that students had in fact been allowed to claim their personal belongings and concerning the particular prayer in this application which was the same prayer in the NUL Students' Union, Kheola J had found "it was pointless and unwise to allow a student body of some 1200 individuals which was not attending classes to remain within the campus" and this court endorses this decision bearing in mind the college is temporarily closed.
Concerning matters raised by the applicants concerning the SRC, I draw attention to first respondent's affidavit in which he deposes at para. 7.5 that students have an Interim Student Representative Council "with which we constantly communicate". We have held meetings with them, I am aware that SRC members approached college technician with their computer for
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repairs. As against the applicants, I am satisfied that an ISRC exists and consults with the third respondent from time to time. This emanates from the fact that as I have observed above, in an application where applicant's allegations are denied by the respondent, the latter' s version is to be preferred. In the result the ISRC being a different body from individual students of the third respondent, the latter cannot speak for the SRC without a mandate from them.
Before deciding the application, certain issues require highlighting well aware students in this strike have not been subjected to any form of punitive measures save having been temporarily sent home.
In Antonie v Governing Body, Sellers High School and Others, 2000(4) SA 738 the South African Schools Act 84, 1996 was referred to focus drawn to schedule on positive discipline meant to achieve culture of reconciliation, teaching, learning and mutual respect and the establishment of culture of tolerance in schools to be done in context of democratic values of human dignity, equality and freedom as enshrined in Bill of Rights in the Republic of South Africa by Act 108 of 1996, including freedom of expression. It was said failure of pupil to comply with prohibition in code of conduct not
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to be assessed in rigid manner for such rigid assessment makes nonsense of values and principles set forth in the schedule and bring them into conflict with justice, fairness and reasonableness underpinning the constitution and common law. It was also said adequate recognition to be given to offenders need to indulge in freedom of expression. Indeed freedom of expression was expounded more on p.742 where the learned judge capturing S. 4.5.1 of the schedule to Bill of Rights said:-
"Freedom of expression is more than freedom of speech. Freedom of expression includes the right to seek, hear, read and wear.
Freedom of expression is extended to outward expression as seen in clothing selection and hairstyle. However, learner's right to enjoy freedom of expression was not absolute, vulgar words, insubordination and insults are not protected speech. When the expression leads to a material and substantial disruption in school operations, activities or the right of others, his right can be limited, as the disruption in schools is unacceptable."
As to the revered principle of audi alteram partem, a pupil was in a habit of absenting herself and parents were warned if she absented herself she would
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be liable for expulsion. The pupil absented herself and was expelled. The case was deemed exceptional and according to the statute the principle audi alteram partem was to be excluded only in exceptional circumstances. The court found parent and child were to be informed of allegations against the child. Expulsion set aside (see Naidoo v Director of Indian Education and Another, 1982 (4) SA 267. Again in Minister of Justice, Diamond v Minister of Justice, 1934 At 11 it was said the proposition that a statute giving power to a Minister to give a decision prejudicially affecting rights of persons or property implies that before the exercise of power the person sought to be prejudicially affected shall have an opportunity of defending himself; it was said the proposition was properly stated unless, by necessary implication, it indicates the contrary. It was nevertheless said the proposition is subject to the qualification the person or body giving the decision if not bound to hear the person affected orally, but it was only bound to give him a fair opportunity of submitting any statement in his favour and controverting any prejudicial allegation made against him. I observe at paragraph 6.3.3 of first respondent's affidavit that he invited students to a meeting "where I also intended to inform the students that unless life returns to normal we would have no option but to temporarily close the college ....."
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It will also be seen that applicants' allegations against third respondent were also controverted. Again, Council of Civil Service Unions and Others v Minister of the Civil Service (1984) 3 ALL ER 395 is another case as to exercise of power by a public authority. In this case a Minister deprived civil servants of benefits of trade union membership and in doing so had not consulted civil servants. A question arose whether civil servants did not have legitimate expectation that they would be consulted and whether, in the event,
denial of legitimate expectation was not a ground for review. Another question was whether national security prevented judicial review of the exercise of prerogative. When the matter came to the House of Lords, the court found irrespective of whether a power exercised directly under the prerogative, it was immune from prerogative since delegated powers emanating from a prerogative power were not necessarily immune since (per Lord Fraser and Lord Brightman), the scope of such delegated power would, either expressly or implicitly, be defined e.g. by reference to their object or procedure by which they were exercised, with the result that such powers were subject to judicial control to ensure that the scope and limits of the powers were not exceeded, or (per Lord Scarman, Lord Diplock and Lord Roskill) because the controlling factor in determining whether the exercise
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of the power was subject to review was the justiciability of its subject matter rather than whether its source was the prerogative.
The court further found an aggrieved person was entitled to invoke judicial review if he showed that decision of a public authority affected him depriving him of some benefit or advantage which in the part he had been permitted to enjoy and which he could legitimately expect to be permitted to continue to enjoy either until he was given reasons for its withdrawal and the opportunity to comment on those reasons or because he had received an assurance that it would not be withdrawn before he had been given the opportunity of making representations against the withdrawal. It was said the appellants (in this case the applicants) legitimate expectation arising from the exercise of a regular practice of consultation which the appellants (applicants) would reasonably expect to continue gave rise to an implied limitation on the minister's exercise of the power contained in Article 4 of the 1982 order being an obligation to act fairly by consulting GCHQ (Government Communications Headquarters) staff before withdrawing the benefit of trade union membership. It was said the minister's failure to consult prima facie entitled the appellants judicial review of the minister's instruction. In the instant case first respondent has deposed there was such
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consultation. On the contrary, had there been no such consultation, it stands to reason that had the applicants asked for the re-opening of the school, the application would have been granted but cannot now be granted for a party cannot be given what it has not asked for.
In the judgment of Council of Civil Service Unions above, it was also said administrative action is subject to control by judicial review under these
heads:-
Illegality, where the decision making authority has been guilty of error of law, e.g. by purporting to exercise a power he does not possess, or he had acted unreasonably.
It has not been complained that the Rector had no authority to act as he did nor can it be said that he acted unreasonably in the circumstances. Where, however, the Rector has undertaken to act for the benefit of applicants, it is desirable that he proceed with speed therein.
Procedural impropriety is where the decision making authority has failed in its duty to act fairly.
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I do not think that the Rector of the third respondent is guilty of any error.
In P v Board of Governors of St Michael's Diocesan College, Bulgawan, 1961 (4) SA 440 (D and CLD) at 449-50 the court found a court cannot substitute its decision for the decision which the Rector was entitled to and did exercise in terms of the contract between the parties. Apparently, according to the learned Wessels J, "The element of unreasonableness only becomes important where it is so gross that one is driven to the conclusion that bad faith existed or that the person on whom discretion is conferred did not give due and proper consideration to the matter. This court can hardly attribute to the Rector and first respondent bad faith or that he did not give due consideration to the matter save that interests of students notwithstanding the strike cannot be ignored in the sense that as the Rector has himself undertaken, the closure is temporary.
In the result, this application is dismissed but since both the applicants and respondents have partially succeeded, there will be no order as to costs.
G.N .MOFOLO
JUDGE
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For the Applicants : Mr. Molati
For the Respondents : Mr. Mbhau
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