IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/192/2009
CIV/APN/201/2009
In the matter between:-
TEPO RAPOU 1ST APPLICANT
KHOBOSO MOELETSI 2ND APPLICANT
TEBOHO SEMATA 3RD APPLICANT
MAFUMANE JANE 4TH APPLICANT
MAPALO BOHLOKO 5TH APPLICANT
LINEO MONTI 6TH APPLICANT
AND
ROBERT TEUOA 1ST RESPONDENT
THE ATTORNEY-GENERAL 2ND RESPONDENT
THE SUPERVISOR OF GOVERNMENT SCHOOLS 3RD RESPONDENT
THE MINISTER OF EDUCATION 4TH RESPONDENT
THE SOS-CHILDRENS VILLAGE LESOTHO 5TH RESPONDENT
SOS CHILDRENS VILLAGES IN LESOTHO 6TH RESPONDENT
THE BOARD OF GOVERNORS OF THE SOS 7TH RESPONDENT
CHILDRENS VILLAGE ASSOCIATION OF
LESOTHO
HERMANN GMEINER PRIMARY SCHOOL 8TH RESPONDENT
JUDGEMENT
Delivered by the Honourable Acting Judge Mr. G.N. Mofolo
On the 12th August, 2009
The Applicants approached this court for an order in the following terms:
Dispensing with the ordinary rules pertaining to the modes and periods of service.
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:
The 1st, 5th to 8th Respondents shall not be directed to continue to provide and facilitate the teaching of Applicants children attending at the 8th Respondent.
The 3rd and 4th Respondents shall take appropriate steps to ensure the establishment of a management committee as contemplated by the Education Act 1995 at the 8th Respondent so as to facilitate a smooth management and provision of proper education of Applicants children attending at the 8th Respondent.
The 3rd and 4th Respondents shall not be directed to see to the establishment of a Management Committee at the 8th Respondent so as to enable parental representation at the Management levels of the 8th Respondent as contemplated by the Education Act.
The 1st, 5th to 8th Respondents shall not be directed to implement the resolutions of the meeting held on the 3rd of May 2009 between the 1st Respondent (as representative of the 5th to 8th 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 2nd Application in CIV/APN/192/2009 is one for an order in the following terms:
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:
The purported suspension of the Applicants by the 1st Respondent from duty shall not be declared null and void and of no force and effect.
The 1st 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 8th Respondent.
The 1st Respondent shall not be interdicted from interfering in any manner whatsoever in the management, administration and organization of the 8th Respondent.
The 1st Respondent shall not be interdicted from interfering with the Applicants in their execution of their official duties at the 8th Respondent pending final determination of this application.
The 3rd Respondent shall not be directed to take over the supervision of the administration of the 8th 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 8th Respondent in terms of Section 17 of the Education Act 1995.
The 3rd Respondent shall not be directed to arrange for the establishment of a Management Committee for the 8th Respondent.
The 2nd to the 4th Respondents shall not be interdicted from channeling the Government Subvention funds intended for use by 8th Respondent into the call account No.0122084483301 held at Standard Lesotho Bank on behalf of the 5th to 7th Respondents, but channel such funds into the 8th Respondents account No.0140083135801 held at the Standard Lesotho Bank.
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 Tepo Rapou Founding Affidavit, 5th Respondent is a society duly registered in terms of the law under the Societys Act, 1966 on 20th day of February 1973 and 6th Respondent is a company registered in terms of the Companys Act 1967 on 21st day of November 1991 as a Limited Liability Company.
2 (g) reads:
The 8th 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 8th Respondent and 1st Respondent resulting in the suspension of four teachers namely:
Masenate Letsolo
Makabelo Ntitsane
Maletsie Mohale and
Paulina Semata (para.5).
According to the 1st 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 childrens 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 2nd to 6th 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 Teuoa has at para.3 denied the existence of 5th 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 6th Respondent not by Teaching Service Commission and 6th Respondent has already engaged temporary teachers; further, 2nd, 3rd and 4th Respondents cannot intervene in affairs of the school as the school belongs to the 6th 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:
Applicants having been suspended with pay are not suffering any prejudice making the matter not urgent.
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).
Applicants are employers of 6th 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.
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 Courts 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
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