IN
THE HIGH COURT OF LESOTHO

HELD
AT MASERU CIV/APN/192/2009

CIV/APN/201/2009

In
the matter between:-

TŠEPO
RAPOU 1^ST
APPLICANT

KHOBOSO
MOELETSI 2^ND
APPLICANT

TEBOHO
SEMATA 3^RD
APPLICANT

‘MAFUMANE
JANE 4^TH
APPLICANT

‘MAPALO
BOHLOKO 5^TH
APPLICANT

LINEO
MONTŠI 6^TH
APPLICANT

AND

ROBERT
TŠEUOA 1^ST
RESPONDENT

THE
ATTORNEY-GENERAL 2^ND
RESPONDENT

THE
SUPERVISOR OF GOVERNMENT SCHOOLS 3^RD
RESPONDENT

THE
MINISTER OF EDUCATION 4^TH
RESPONDENT

THE
SOS-CHILDREN’S VILLAGE LESOTHO 5^TH
RESPONDENT

SOS
CHILDREN’S VILLAGES IN LESOTHO 6^TH
RESPONDENT

THE
BOARD OF GOVERNORS OF THE SOS 7^TH
RESPONDENT

CHILDREN’S
VILLAGE ASSOCIATION OF

LESOTHO

HERMANN
GMEINER PRIMARY SCHOOL 8^TH
RESPONDENT

JUDGEMENT

Delivered
by the Honourable Acting Judge Mr. G.N. Mofolo

On
the 12^th
August, 2009

The Applicants
approached this court for an order in the following terms:

1. 
   Dispensing
   with the ordinary rules pertaining to the modes and periods of
   service.

   
   

2. 
   A rule nisi be
   and is hereby issued returnable on the date and time to be
   determined by this Honourable Court calling upon the
   Respondents to
   show cause (if any) why:

   
   

1. 
   The 1^st,
   5^th
   to 8^th
   Respondents shall not be directed to continue to provide and
   facilitate the teaching of Applicants’ children attending at
   the
   8^th
   Respondent.

   
   

2. 
   The 3^rd
   and 4^th
   Respondents shall take appropriate steps to ensure the
   establishment of a management committee as contemplated by the
   Education
   Act 1995 at the 8^th
   Respondent so as to facilitate a smooth management and provision of
   proper education of Applicants’ children attending at
   the 8^th
   Respondent.

   
   

3. 
   The 3^rd
   and 4^th
   Respondents shall not be directed to see to the establishment of a
   Management Committee at the 8^th
   Respondent so as to enable parental representation at the
   Management levels of the 8^th
   Respondent as contemplated by the Education Act.

   
   

4. 
   The 1^st,
   5^th
   to 8^th
   Respondents shall not be directed to implement the resolutions of
   the meeting held on the 3^rd
   of May 2009 between the 1^st
   Respondent (as representative of the 5^th
   to 8^th
   Respondents) on the one hand and Applicants on the other hand
   pending final determination of this application.

   
   

3. The
Applicants shall not be granted such further and/or alternative
relief as this Honourable Court may deem meet.

4. That
prayers 1 and 2 (d) operate with immediate effect as interim court
orders.

The 2^nd
Application in CIV/APN/192/2009 is one for an order in the following
terms:

1. 
   Dispensing
   with the ordinary rules pertaining to the modes and periods of
   service.

   
   

2. 
   A rule nisi is
   hereby issued returnable on date and time to be determined by this
   Honourable Court calling upon the Respondents
   to show cause (if any)
   why:

   
   
   
   

   1. 
      The purported
      suspension of the Applicants by the 1^st
      Respondent from duty shall not be declared null and void and of no
      force and effect.

      
      

   2. 
      The 1^st
      Respondent shall not be interdicted from holding himself out as the
      appropriate repository of power responsible for the discipline,

      organization and day to day running of the 8^th
      Respondent.

      
      
   
   

3. 
   The 1^st
   Respondent shall not be interdicted from interfering in any manner
   whatsoever in the management, administration and organization
   of
   the 8^th
   Respondent.

   
   

4. 
   The 1^st
   Respondent shall not be interdicted from interfering with the
   Applicants in their execution of their official duties at the
   8^th
   Respondent pending final determination of this application.

   
   

5. 
   The 3^rd
   Respondent shall not be directed to take over the supervision of
   the administration of the 8^th
   Respondent in terms of Section 25(4) of the Education Act 1995
   until such time that a Management Committee will have been
   established for the 8^th
   Respondent in terms of Section 17 of the Education Act 1995.

   
   

6. 
   The 3^rd
   Respondent shall not be directed to arrange for the establishment
   of a Management Committee for the 8^th
   Respondent.

   
   

7. 
   The 2^nd
   to the 4^th
   Respondents shall not be interdicted from channeling the Government
   Subvention funds intended for use by 8^th
   Respondent into the call account No.0122084483301 held at Standard
   Lesotho Bank on behalf of the 5^th
   to 7^th
   Respondents, but channel such funds into the 8^th
   Respondent’s account No.0140083135801 held at the Standard
   Lesotho Bank.

   
   

8. 
   Directing
   those of the respondents desiring to oppose this application to
   file their opposing papers within three (3) days of
   service upon
   them of an interim order in this matter and that this matter be
   heard within six (6) days of the filing of such
   opposing papers, or
   within such time as the Honourable Court may deem convenient.

   
   

3. Costs
jointly and severally.

The applications
were consolidated.

According to
paragraph 2(e) of the Applicant Tšepo Rapou Founding Affidavit, 5^th
Respondent is a society duly registered in terms of the law under the
Society’s Act, 1966 on 20^th
day of February 1973 and 6^th
Respondent is a company registered in terms of the Company’s Act
1967 on 21^st
day of November 1991 as a Limited Liability Company.

2 (g) reads:

The
8^th
Respondent is Hermann Gmeiner Primary School … this school is
registered with the Ministry of Education under registration

N0.104005. I must inform the court that the numbers reflected above
have a meaning. The first number represents the level of
the school
that is the primary school. The second number represents the
proprietor, indicating that it is a government owned
school. The
third number represents district of Maseru. The remainder of the
numbers represents the number allocated to the
school which shows
that it was registered as primary school number five of government
schools in the district of Maseru.

According to the
deponent, there was a misunderstanding between teachers at the 8^th
Respondent and 1^st
Respondent resulting in the suspension of four teachers namely:

‘Masenate
Letsolo

‘Makabelo
Ntitsane

‘Maletsie
Mohale and

Paulina Semata
(para.5).

According to the
1^st
Applicant, because of the suspension of aforesaid teachers, pupils
are not being taught there being no teachers to teach them.

According to the deponent, because pupils are not taught, education
of the children is being seriously jeopardized and prejudiced

(para.7).

He has further
deposed to pay school fees to improve their children’s education
(para.8). Para.9 refers to an application dismissed
by Mr. Justice
Nomngcongo.

The deponent has
further deposed while issues affecting suspended teachers are being
resolved, children be allowed to be taught
by the same teachers
(para.10) and that no non-replacement of suspended teacher is
prejudicial to interests of children (para.11).

The deponent has
further deposed perhaps the interaction of 2^nd
to 6^th
Respondents is necessary though this can only come by an order of
this court (para.12).

He has said they
have a clear right to approach the court this being their only remedy
(para.13).

In his Answering
Affidavit, Robert Tšeuoa has at para.3 denied the existence of 5^th
Respondent.

In his para.4 and
paras 5, 6, 7 and 8, the deponent has stated Applicants have no right
to interfere with relationship of teachers
and school in that they
are not parties to the contract of employment the disciplining of
teachers being the sole prerogative of
the school mindful the
resolution made by parents does not bind the school.

In para.6 and
paras 10, 11 and 12, the deponent has deposed the suspended teachers
were engaged by 6^th
Respondent not by Teaching Service Commission and 6^th
Respondent has already engaged temporary teachers; further, 2^nd,
3^rd
and 4^th
Respondents cannot intervene in affairs of the school as the school
belongs to the 6^th
Respondent as proprietor.

In para.7 and
paras 13 and 14 deponent denies the matter is urgent in that parents
are being misled by unruly teachers who are facing
disciplinary
proceedings.

In
CIV/APN/192/2009, Respondents have raised points in
limine
namely:

1. 
   Applicants
   having been suspended with pay are not suffering any prejudice
   making the matter not urgent.

   
   

2. 
   This is a
   matter between employer and employee relationship making it
   exclusively under the jurisdiction of the Directorate of
   Dispute
   Prevention and Resolution (DDPR and/or the Labour Court).

   
   

3. 
   Applicants are
   employers of 6^th
   Respondent having no locus standi to bring proceedings for relief as
   set out in prayer 2 (e), (f) and (g) of the Notice of Motion.

   
   

4. 
   Applicants
   have failed to exhaust local remedies as they have never appealed to
   the Board of Governors.

   
   

In support of his
contention, Mr.
Matooane
has contended the crux of the application is whether the High Court
is the right forum to determine Labour issues including suspension
of
teachers and in this respect has referred to judgement of Appeal
Court of Lesotho in Attorney
v Lesotho Teachers Trade
Union
& Others 1995-1996 LLR v LB 345 at 360 where
Steyn JA (as he then was) said:

“It
must be stressed, however, that our courts should be astute to
ensure that the powers of the Labour Court to adjudicate
on such
matters are strictly confined to matters that are either trade
dispute stricto
sensu
or are clearly identifiable as issues contemplated by the
legislature as defined in Section 24.”

Mr. Matooane
has said the dicta were followed by Friedman JA in CGM
v Lecawu 1999-2000 LLR v LB P1 at 8
where he said:

“It
is important to emphasize that in matters provided under the code,
the High Court has no jurisdiction and that only the
Labour Court
has jurisdiction … failure to recognize the exclusivity of the
Labour Court’s jurisdiction in matters provided
for under the code
would lead to the unsatisfactory practice of what has been termed as
“forum shopping …”

As far as urgency
is concerned, I would disagree with Mr.
Mosito
who would have suspended teachers recalled since remedies affecting
their suspension are to be exhausted, remedies outside the
preview of
this court. I wholeheartedly agree with Mr.
Mosito
that in matters coming before court affecting the interest of pupils
and most probably minors, the court as upper guardian of minors
is to
ensure interest and welfare of children is safeguarded and I am
satisfied by appointing temporary teachers to teach children
in the
absence of suspended teachers interest of school children is being
served instead of prejudiced.

In so far as the
relationship between employer and employee is concerned this having
to do with whether this court has jurisdiction
to entertain matter
and the locus
standi
of Applicants, this matter is exclusively under the jurisdiction of
the Directorate of Dispute Prevention and Resolution (DDPR)

purportedly declared so by applicants according to correspondence
between them and management of the respondents and I agree with
Mr.
Matooane
the court has no jurisdiction to entertain the matter.

The now obsolete
principle of actio
popularis
has been floated in this application but as noted above, it is
obsolete although action can be brought de
libero homine exhibento
by a person who has a specific interest in the liberty of another
(Wood
v Ondragon wa Tribunal Authority 1975 (2) SA 294 (A) 31 off).
Unfortunately, in the instant application we are not dealing with the
liberty but welfare of pupils which is at stake since their
teachers
are suspended. Indeed this court was enjoined to proceed with speed
were the pupils prejudiced as Applicants have contended.
As it turns
out and contrary to Respondents’ perceptions, temporary teachers
have been engaged to replace suspended teachers
thus removing pupils
being disadvantaged in their lessons. There is another aspect to
this application, namely that the administration
of the school cannot
be a free for all to allow ill-discipline instead of heading it off
to stop unrest. Moreover, no school can
function without resorting to
rules governing it.

In the result,
points in
limine
taken are granted and this court would in like manner dismiss both
applications, and they are so dismissed with costs.

G.N.
MOFOLO

PUISNE
JUDGE

For
the Applicants : Mr. Mosito

For
the Respondents : Mr. Matooane